My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)
moved Amendment No. 28:
Page 7, line 33, leave out "listed" and insert "mentioned".
I think that I can be brief with this group of amendments. Amendment No. 28 is a minor drafting amendment and Amendment No. 33 relates to the latest print of the Bill. Apparently, Clauses 14 and 15 are the wrong way round, as can be seen from comparing the provisions relating to prohibition orders and the headings for paragraphs 19 and 20 of Schedule 1 to the Bill. I hope that helps anyone who did not spot it. I cannot explain how that occurred but, clearly, your Lordships' House will expect us to put it right.
Schedules 2 sets out the procedures for the service of copies of prohibition orders, for the service of notices relating to revocation or variation orders and for appeals against orders. They are technical amendments intended to ensure that the categories of person on whom copies of orders must be served and who may appeal against orders do not overlap.
Finally, government Amendment No. 57 rectifies an omission and clarifies the time at which the sum demanded, if not recovered, becomes a local land charge. I beg to move.
Can the Minister explain what is the legal difference between the words "listed" and "mentioned"? I do not want to be pedantic, but there appear to be quite clear lists set out in Clauses 5(2) and 7(2), so I cannot understand why the word "listed" is to be replaced with the word "mentioned". That word suggests something that comes and goes while "listing" is more permanent.
Perhaps we could start the day in the way we mean to go on with a quiet and clear explanation from the Minister of the reasoning behind this amendment.
It will be a very quiet explanation because I do not have one. I am intrigued by the desire of the noble Baroness to focus on Amendment No. 28. As I have said, it is a minor drafting amendment. In essence I think it has been tabled because we prefer the word "mentioned". I take the point that the word "listed" may sound crisp, but "mentioned" sounds more friendly to me.
The purpose of this amendment is to reduce the rate of VAT on construction work undertaken after an improvement notice. I gave notice to the Minister that I could have tabled this amendment to a number of other clauses in the Bill, but I want principally to raise the importance of this issue if we are concerned with improving the poor condition of many of our homes.
VAT on domestic repairs affects many of the poorest in our society. This has been shown by figures gathered by the English House Condition Survey. In the European context, this amendment would be consistent with Annex H of the Sixth VAT Directive because a reduced rate of VAT would then be available for housing as part of a housing policy, which is the important point. The Government did agree to an extension of the reduced rate experiment under Annex K of the Sixth VAT Directive, and therefore they seem to be in favour of a reduced rate of VAT for domestic building work—at least in principle.
The renovation of non-decent homes could greatly benefit from a reduction in VAT. The average cost of renovating a non-decent property is estimated at something over £7,000 excluding VAT. If VAT is charged at the standard rate, it adds something in the order of £1,200 to the total repair bill. If the rate of VAT were reduced to 5 per cent, the tax bill would fall by approximately £360 per property, considerably reducing the total cost of the repair. The difference suggests that for the renovation of every eight non-decent properties, one more property could be brought up to an adequate standard if we had a reduced rate of VAT.
VAT falls disproportionately on the poor. For a poor household with a monthly disposable income of only a few hundred pounds, adding £140 of VAT on to an £800 home repair job makes a significant difference. In some cases it will probably decide whether the repair is carried out. In complete contrast to the argument presented in the Barker review, it is often VAT that keeps the poor from being able to afford to carry out essential repairs. The findings of the English House Condition Survey show that substandard housing is concentrated in deprived areas, which strongly supports my view.
Present VAT policy on housing repair work, coupled with recent changes to local authority grant funding for poor and vulnerable households, is likely to prevent essential housing repairs being carried out. This is likely further to undermine the condition of the existing housing stock. It also does nothing for social inclusion by widening the gap between economically well-to-do and deprived localities.
I am grateful to the National Home Improvement Council, of which I am a vice-president, and the Federation of Master Builders, which I should say is putting together quite a campaign on this issue, for their briefing. Indeed, I could talk about this for a considerable time. However, as I mentioned in our debate yesterday, some three-quarters of all properties in the private sector do not meet decent home standards, and it would cost something like £40 billion for them to do so.
If the Government are serious about decent home targets and serious about the condition of many of our private sector properties, we need to do something about VAT. That must make sense. While it is not easy, I think that it is possible. I should be interested to find out where the Government stand on this matter. Although they understand the problem, it is clear that they are concerned about the knock-on effects. However, given the important issues being addressed in this Bill, such as disrepair and the effort to improve housing standards, this amendment would go a long way to help. I beg to move.
I would like to support this amendment. In doing so I declare a pecuniary interest as the owner of a good quality house, built in the 1880s, but which is now in need of some £10,000 worth of ordinary running repairs. That is not an uncommon situation. Although I have a pecuniary interest, I believe myself to be speaking in the public interest, although that is a matter for the Committee to judge.
The case has been made many times before. I first encountered it as far back as 1965 when Lord Kennett was at the Ministry of Housing. The ministry commissioned a study in Rochdale, known as the Deeplish study. It found a very high proportion of old houses that were basically good and sound, many of them capable of lasting a lot longer than houses built during the 1930s. The study concluded that if you wanted to house more people, repairing the existing houses and keeping them in a good state of repair was much better value for money than pulling them down or allowing them to fall into an unsightly mess, and then building new ones. I see no reason to believe that that analysis has ceased to be true.
One can observe around any big town that the older houses are very much more reliable. The Victorians built houses to last, but they do not last without ordinary, standard maintenance. Of all the things from which people may be deterred by financial disinducements, repairing their homes comes high on the list. The costs are often considerable, usually unknown, and builders do not always keep to their estimates. It is very easy, for someone for whom money is tight, simply to leave their house unrepaired and let it deteriorate. However, when they do that, they are wasting a public asset, which is to the detriment of the whole public.
It then becomes necessary to build new houses, taking up more land and destroying green fields—which are not in that plentiful a supply—while leaving behind an unsightly mess in the old place. I do not believe that to be in the public interest. So, if we can diminish the disincentive of VAT on bills to repairing one's house, it would be in the public interest. I understand that that can be squared with the EU directive—I take other people's word on that—and I hope that the Minister can enlighten me further.
If we want to house more people at less cost and to do so comfortably, without all the upheaval of moving and without all the estate agents' commission, this seems to me a good, sensible, cost benefit-suitable way of doing it. I am happy to support the amendment.
My Lords, I appreciate that this is a probing amendment designed to draw attention to the cost of repairs and the way in which reduced VAT could, in some circumstances, help deal with improvement and repair, but there are implications in giving this activity the benefit of a 5 per cent VAT rating.
There is no doubt that reducing VAT on property repair and maintenance would encourage the improvement and repair of property, but it would come at a considerable cost—estimates from the Exchequer suggest that it would be some £700 million a year—and it would have the perverse effect of subsidising those who have the resources to make repairs and improvements to their homes themselves. The responsibility for improving and repairing private sector homes primarily rests, as is obvious, with the owner. Government support must be targeted to those who do not have the necessary resources to do the work themselves and who are at risk from living in poor conditions. In our estimation, this measure would not go very far towards helping that group of people.
The Regulatory Reform (Housing Assistance) (England and Wales) Order 2002, in any event, gave local authorities wide powers to provide assistance to vulnerable owners and tenants to repair and improve their properties—for example, through grants, loans, or more practical measures such as the provision of materials and labour. It provides authorities with the flexibility to devise tailor-made solutions that address the problems and priorities they face with poor condition property in their localities. We have allocated an additional £30 million in both 2004–05 and 2005–06 through the regional housing boards to boost local authorities' use of those powers. I am conscious that we will debate further home information packs, but it is perhaps worth reminding the noble Baroness and the noble Earl that a home condition report will make a real difference on property conditions, including measures to improve and assist energy efficiency.
We will make real inroads into the issue of disrepair in the private sector only if home owners take more responsibility for the condition of their home. Our aim is to help those who are least able to help themselves; for others, we need to raise awareness of the importance of these matters generally. That is where the home condition reports will be of considerable importance.
The other issue with the amendment is the question of how the reduction would be applied. How would it work practically? What evidence would a person have to produce to justify a 5 per cent VAT rating? Who would produce the evidence—the person served with the notice or the contractor? This is a probing amendment and does not deal with any of those hard-nosed, practical questions, but this is a hard-nosed practical issue and, while I understand the interest of those who have moved the amendment, I believe that, at the very least, some further thought and reflection is needed on its practical application and how it will work. For those reasons, I hope that the noble Baroness will feel able to withdraw the amendment.
No doubt, the amendment requires further thought, but I cannot help feeling that the answer requires further thought also. The Minister said it would cost a great deal—yes, it would—but the important question is not how much it will cost but whether it will cost more or less than the alternatives.
The Government know that building new houses, with all the attendant confusion of planning permission, is a very expensive process—and we have a considerable net shortage of housing. So the alternatives are either to repair property that is at present perfectly habitable or to build new property. I do not think there is much question about which is the cheaper of those alternatives.
The Minister is right to say that nothing will be done until home owners are prepared to take responsibility for their own properties. The object of the amendment is to ensure that they shall not be deterred from so doing when they wish to do so. An extra 17.5 per cent on a four-figure bill is a considerable sum in most people's budget. People who are on the kind of margins on which most ordinary people live react to such costs at the margin. We are suggesting that the Government should simply refrain from deterring people from taking responsibility where they are willing to do so.
I do not think it is any use quoting deliberate and ad hoc grants, well intentioned though they may be. I am sure we all understand quite how little most of our fellow citizens—and, indeed, many of us—know about what the Government are actually doing in detail. If I went to my next-door neighbour and told him about this £30 million two-year scheme, I do not think—even though he is a builder and careful of his house—that he would know anything about it. Such schemes must be known before they can act as an incentive.
That is why we need a general rule. The Minister said: "To what should it apply?". I think the criterion is that it should apply to repairs. It is perfectly easy to distinguish a repair from an addition; it is perfectly easy to distinguish a repair from ornamentation; it is far easier than the kind of judgments that the courts make day by day.
So, before the Minister dismisses the amendment out of hand, he should consider the alternatives and whether they will get him into more trouble than this does. I hope that that thought will be productive.
I am grateful for the support of my noble friend. The Minister criticised the amendment on several grounds with regard to how it would work. I thought I had made it fairly obvious when I moved the amendment that if I was serious about the Government accepting it and incorporating it into the Bill, it would not have been in this form.
People are interested in improvement and repair in general, and the Government should look at the issue of VAT. Indeed, the Minister referred to costs of £700 million a year. What cost-benefit analysis have the Government carried out on this issue? When I consider the problems caused for the health service by people who live in poor, cold and damp homes, I cannot totally accept what the Minister said about that.
At the moment, new house building enjoys zero-rated VAT, but for repair, maintenance and improvement work it is 17.5 per cent. I explained how that affects those who are the least well-off in our society—and, again, I do not accept the Minister's criticism on that issue.
It is important to note that a reduced rate of VAT on improvement and repair work would not interfere with new house building. In fact, it would probably reduce the pressure on land and industry. We shall discuss the issue of new properties, I hope, later in the Bill.
I agree that zero-rated VAT on new house building is necessary if the Government want to realise an expansion of the housing supply, as they have indicated they do. However, supporting new housing with fiscal incentives while penalising the upkeep of existing housing goes against the principles of sustainability. As my noble friend said, ultimately it is counter-productive to the economy as a whole. I hope that the Government will keep this issue at the forefront of their agenda because it supports much of what they want to do in their housing policy.
I made clear when I moved the amendment that I did not expect the Government to accept it. At this stage, I beg leave to withdraw the amendment.
moved Amendment No. 29A:
Page 10, line 17, after "improvement" insert "or repair"
In moving Amendment No. 29A, I shall speak to a series of other amendments, the substantive elements of which are Amendments Nos. 34A and 34B. There are clearly a number of consequential amendments, not all of which are being moved in this block on the advice of the Clerk that it would clutter up the Marshalled List.
The purpose of the amendments, which is very simple, is to seek to ensure that existing local authority powers to tackle directly substantial disrepair in private rented housing continue. As I understand it, the Bill repeals local authority powers under Section 190(1)(a) of the Housing Act 1985 to tackle substantial disrepair. The point made in the amendments is that the power is important to complement the housing health and safety rating system—HHSRS—powers. They would not supersede those duties, and when an authority had a duty under the HHSRS legislation, that duty would remain. But in some circumstances, the substantial disrepair powers are an invaluable option to address disrepair in private housing. Of course, they would assist in enabling the meeting of the decent homes targets for owned housing. Substantial disrepair powers would be a cost-effective addition to HHSRS powers—by, for example, avoiding repeat inspections.
The existing substantial disrepair powers enable local authorities to do things that are not possible under the HHSRS powers. In particular, under the substantial disrepair powers, which would disappear under this Bill but be reinstated to some extent by the amendments, local authorities can, after an inspection, request preventive action prior to deterioration when a defect becomes a hazard.
I have seen legal advice from Jan Luba QC, who I understand is the author of a standard text book on private sector disrepair, that those actions would not be possible under the HHSRS powers—that they do not allow that. That point brings us back to the debate that we have just been having about what is cost-effective under some circumstances. If local authorities do not have the power to intervene to prevent the deterioration of a property when a defect is at a fairly early stage, it could very soon become a major health and safety hazard, and the cost of dealing with it would be very much higher.
Also under the substantial disrepair powers, local authorities can ask for longer lasting works to avoid repeat inspections a year or so later. Again, the advice that I have seen suggests that without this amendment that would be possible only in category 1 hazards. The amendment would therefore widen the power to avoid repeat inspections and increased costs.
The substantial disrepair powers also permitted local authorities to ask for disrepair to be tackled on a range of items that are specifically not addressed under the HHSRS provisions. Those include perished external renderings, failed pointing or sills, and woodworm and dry rot that has not yet weakened the timber. In the spirit of the noble Earl, Lord Russell, I should declare an interest, having recently discovered some dry rot in the house where I live. The items also include old electrical wiring that is not yet a fire or electrocution hazard but clearly could become so in future or fairly soon; external disrepair that does not already cause dampness or the risk of falling elements; and loose wall tiling and unkeyed wall plaster on solid walls. Those are all items that will not be covered without the amendment being passed.
The simple point is that substantial disrepair powers cover defects which are not hazards and do not fall under the HHSRS powers, but remedying such defects would contribute to meeting the decent homes standard, which recognises the need to address disrepair likely to lead to structural failure or future hazards.
I would not wish to impugn my noble friend the Minister with unfortunate motives, but it looks as if the Government are setting local authorities a target for private sector decent homes and, at the same time, taking away an important power to help to deliver those standards.
It is also important to recognise that substantial disrepair powers are essential to achieve the upgrading of the rundown neighbourhoods envisaged in the area renewal powers. I understand that the London borough of Newham, for instance, is very concerned that the removal of the substantial disrepair powers will greatly detract from the effectiveness of the urban renewal in Forest Gate, which is part of a SRB funding project worth £20 million. If by removing the substantial disrepair powers we undermine the effectiveness of major regeneration projects, that is surely a false economy and not very helpful. It obviously has widespread implications for area renewal in low-demand areas. I understand that the ODPM Select Committee has also expressed concern about the abolition of those Section 190 powers. Under those circumstances, I find it slightly surprising that the Bill envisages their abolition.
If repealing the powers to tackle disrepair in Section 190 would adversely impact on local authority powers to secure the improvement of quality of housing, why are we doing this? The substantial disrepair powers that currently exist but would be removed by the Bill and reinstated by the amendment can be a cost-effective option that local authorities may wish to choose. In practice, they are invaluable for achieving decent homes in private rented housing. They are essential for private sector housing area renewal—and they complement and do not override duties under the new HHSRS powers. I beg to move.
I have some sympathy with the noble Lord's remarks, but I understand that there is some difference of opinion among environmental health officers in particular about whether such powers as he has described are needed. Some of those people are concerned that a parallel system of regulation could divert local authorities' attention away from the needs of occupiers towards the repairing of dwellings. Both are important, but the one important thing about the new system is that it is actually concerned with what is happening to the people as well.
There are concerns, however, that the housing health and safety rating system—gosh, we should be able to say that well by the end of the passage of the Bill—does not as currently proposed address all aspects of decent home standards. That is what the noble Lord has just said, and was something that we discussed yesterday, when he may not have been present. The Government's target of increasing the proportion of vulnerable people living in decent homes will not be effective unless local authorities have the power to compel reluctant landlords to carry out necessary works.
I look forward to the Minister's response. We have a bit of a problem here, but we need to think carefully about how the two systems would run together.
At the beginning of the noble Baroness's speech, I said to myself, "She has got my notes". Unfortunately, I shall have to elaborate.
As my noble friend made clear, the group of amendments includes two new clauses, which are basically designed to retain the powers in Section 190 of the Housing Act 1985, in a modified form, together with some consequential amendments.
I know that key housing bodies support the replacement with the housing health and safety rating system—and I shall quote a few of them in a moment. We also know that some concerns have been expressed by a small number of stakeholders about the repeal of Section 190.
The purpose of the section was, as my noble friend said, to enable local authorities to deal with properties that were not unfit but needed substantial repairs to bring them up to reasonable standard. The housing health and safety rating system makes a significant difference to the position under fitness. Although HHSRS still has a threshold, it is not the same as the threshold between unfitness and fitness. Part 1 of the Bill gives powers and duties to authorities to deal with all hazards, however serious and however minor. Disrepair may feature in any hazard—the amendment overlooks this, which is a fundamental oversight.
The amendments would remove reference to fitness, but do not acknowledge the hazard rating system. Therefore, any retention of Section 190 in the terms of the amendments would seriously overlap with the new housing health and safety rating system on the treatment of disrepair and would, as the noble Baroness said, provide an alternative route for dealing with it. We are confident that the housing health and safety rating system will enable local authorities to take action to deal with properties needing repair, whether substantial or otherwise, and will be an invaluable tool in area renewal.
It is clear that disrepair is capable of contributing to hazards that can be tackled under the housing health and safety rating system. Hazards from structural failure, fire, cold, falls, asbestos and electrical faults are set out in version 2 of the guidance and illustrate the kinds of disrepair that can give rise to these hazards and against which authorities will have either a duty or a wide discretionary power to take action.
We take local authority concerns seriously. The Bill has been around a long time, and we have consulted about the new system, but evidence that substantial disrepair would be left unattended following action against either category 1 or category 2 hazards has so far been absent from the debate over disrepair powers.
I must make it absolutely clear that the housing health and safety rating system enables authorities to go beyond simply removing a category 1 hazard. Clause 10(5) states that remedial action must, at a minimum, ensure the hazard ceases to be a category 1 hazard and that it may extend beyond such action. There is discretion for the authority to deal with a category 1 hazard. Authorities also have wide discretion to deal with all category 2 hazards. We intend to issue the final draft of the version 2 guidance later this summer. Alongside it, we will issue updated worked examples that illustrate the kind of deficiencies that give rise to category 1 and category 2 hazards.
Retention of the Section 190 powers in anything like these amendments would undermine the housing health and safety rating system, although I am sure that this is not my noble friend's intention. Bodies such as the Local Government Association and the Chartered Institute of Environmental Health, as well as the British Medical Association, are in favour of the principle of the housing health and safety rating system. I doubt that they would want to see a parallel regime that undermines it and causes confusion.
Some authorities—I suspect that they are London authorities—have been concerned over the issue of disrepair that does not contribute to any hazards. The Chartered Institute of Environmental Health suggested that we provide in the Bill that remedial works should ensure that hazards do not recur for a given number of years. We have no problem with that in principle, but we do not need to amend the Bill to achieve that. We are willing to look at clarifying in the enforcement guidance that, in dealing with hazards, local authorities can use their discretion where they are concerned about future deterioration and want to ensure that works are carried out to a good and lasting standard. That discretion includes consideration not only of when something is likely to happen but also of the consequences when it happens.
There might be a question of whether any defects might remain in a property once all category 1 and category 2 hazards had been dealt with. If some defects remain, they are likely to be minor, and it must be open to question whether, together, they would require substantial remedial works—whatever "substantial" means. As to the standard to which any works would be carried out, we are not sure what the standard would be. In this House and in the other place, we are aware of the criticism that the housing health and safety rating system deals with individual hazards and not the whole house. The safety rating system will take account of defects contributing to all hazards, wherever they occur in a dwelling. We debated that yesterday when we discussed the vicinity of a dwelling. Some hazards can only be assessed in relation to the whole house, for example, fire is a whole-house hazard. Equally, a major hazard such as risk of structural collapse would be regarded as relating to the whole of the property.
As the noble Baroness said, we debated the decent home standard yesterday. It is not a mandatory standard, with the exception of the fitness element that is in the future safety rating system. We do not support making the decent home standard as a whole an enforcement standard. That would bring millions of dwellings within its scope, often for reasons that are not health and safety-related and that is a key justification in human rights legislation for intervention in people's property and homes. Given the attention paid to the Bill in scrutiny of regulatory impact and human rights, noble Lords might want to know what is meant by some of the issues such as "state of disrepair", "substantial repairs" and "reasonable standard". If those concepts are addressed outside of the housing health and safety rating system, it is legitimate to ask what they mean and how arbitrary judgments would be avoided. Yesterday, we discussed the fact that these are professional judgments based on risk, calculations and measurements. They are not arbitrary judgments but are the professional judgments of environmental health officers.
My noble friend has raised legitimate matters. However, this amendment would not fit in the Bill. We do not think that some of the major concerns expressed by some authorities are justified because they still have the discretion, even within the new system, to carry out the works to which my noble friend referred. We will look at the guidance—I mean what I said—to strengthen it so that there cannot be any doubt about that, but we do not need to do it in the Bill. The guidance will have the necessary effect.
While the Minister was talking, it struck me that the amendments were framed in terms of compulsion, whereas Amendment No. 29, in the name of my noble friend Lady Maddock, was concerned with permissive action to allow people to do what they wanted to do. There is necessarily a place for compulsion, but it is an unpleasant, expensive and labour-intensive process that will not become easier while the Chancellor is engaged in reducing the number of civil servants. So where something can be done voluntarily and compulsion rendered unnecessary, it is a good thing. It is somewhat illogical to introduce a disincentive to do something immediately followed by a compulsion to do it. That is not letting the left hand know what the right hand doeth.
I do not accept the noble Earl's logic. We live in a property-owing democracy. People are responsible. They freely enter into owner-occupation and are responsible for the asset they own. I do not see that it is a disincentive that they have to pay VAT. I accept that sometimes the effects of the tax system seem to contradict other parts of policy. The noble Baroness mentioned a good example that we can come on to later in the debate about the construction of new properties on greenfield and brownfield sites. It is quite clear that the policy is construction on brown fields first and green fields second; yet, they are on a level playing field for taxation purposes, and everyone knows that it is cheaper to build on green fields. We have regular discussions with our colleagues in the Treasury about these issues, which were floated in the Barker review. It is not as though this is the way we deal with it and this is the only chance we get. There are ongoing discussions about these issues.
The noble Earl has slightly complicated the issue that I wanted to have illuminated by this amendment. I am enormously grateful to my noble friend the Minister for the offer he has made to look at the form in which guidance will be given. It is particularly important that the issue of potential hazards is addressed. The Minister is clearly an able detective because he somehow guessed that some of the concerns were emanating from London local authorities. The concern of some local authorities is that they will be bereft of powers that they need to tackle issues where there are defects that have some degree of hazard but are not yet so major that a local authority feels it can properly intervene or where a local authority can see that there is going to be deterioration over time. They are not confident that a voluntary system will work, which is why they require these powers.
An example has been drawn to my attention of a property in Harrow Road in E6. This is a rented property where the entire back addition is subject to extensive subsidence. Although immediate health hazards could be addressed through patch and bodge methods, the work would only need to be repeated at regular intervals thus increasing the costs. The landlord has failed to come up with a plan to address the current failings and so the local authority concerned is likely to use the existing powers to require the demolition of the back addition and complete rebuilding to provide modern kitchen and bathroom facilities. At the end of that work the property would, of course, be fully compliant with the decent home standard. I hear what my noble friend says about not making that mandatory. However, the concern of that local authority is that those works would not be possible under the present Housing Bill. All that would be possible under the present Housing Bill would be a series of fairly minor actions to remedy the immediate hazards rather than the potential long-term hazards. The extra costs associated with that are, I think, clear and important.
I hope that my noble friend will look carefully at what form of guidance can be given to address the potential hazards and the more holistic issues that I have just described in terms of the property in E6. I hope that before we reach the next stage of the Bill he will have been able to give us rather more detail on how that guidance might address this issue. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 30:
Page 10, line 34, leave out paragraph (b).
Amendments Nos. 30, 31 and 32 are grouped and are consequential upon each other. Amendment No. 30 is consequential upon the other two as it would remove the relevant timescale.
The aim of this important series of amendments is to build into the legislation a range of measures to protect landlords from the behaviour of irresponsible tenants where a notice is served. Amendment No. 31 is designed to clarify the position of landlords who are faced with obstructive or unco-operative tenants. It would be unwise for any of us to assume that that does not and could not happen. Under our amendment the landlord would not be liable for incomplete work, or being unable to undertake any of the work in the notice, if he was prevented from doing so by the tenants.
Amendment No. 32 attempts to clarify the status of improvement notices should the property revert from multiple to single occupation. This is to ensure that if a notice were issued to complete improvement work but the state of the property were to change in the interim—that is, should the landlord cease to rent out the property and decide to change it, say, to single occupancy—the authority could issue a fresh notice that was applicable to the property under its new status, and the status of the original improvement notice would be revised.
There are two elements to the amendments: first, where you have an unco-operative tenant who makes it almost impossible for the improvement work to be carried out; and, secondly, where the status of the property changes and the landlord is faced with an improvement notice but is about to undertake work to bring the house back into single occupation. I beg to move.
If I may, I shall deal with Amendment No. 31 first as it is the main amendment.
Concerns were expressed in Committee in the other place about a tenant who may fail to co-operate with a landlord in the carrying out of remedial work required under an improvement notice. We can see why some may take the view that in those circumstances the improvement notice should be suspended until such time as the occupier allows the work to proceed or the landlord acquires vacant possession. However, we would be very reluctant to agree to a provision that relieves the person on whom the improvement notice is served of the responsibility for complying with it even if he or she is obstructive as regards carrying out the necessary remedial works.
There are two issues involved in this. First, an improvement notice that is suspended contains the conditions relating to the suspension; in other words, it is suspended for reasons that the local authority has already taken into account following its assessment of the hazard and its possible impact on the occupiers. Secondly, it cannot be in anyone's interest that the enforcement action which the authority will have embarked upon for good reason—an authority does not do this lightly—should be deferred simply because the person on whom the notice is served has run into some difficulty.
We are not altogether unsympathetic. However, while Clause 29 makes it an offence to fail to comply with an improvement notice that has come into operation in any proceedings, it is a defence that the person on whom the notice was served had a reasonable excuse for failing to comply with it. In our view we must get the balance right. We need to bear in mind that the improvement notice has been served in order to deal with a hazard from which people—in most cases those occupying the premises—need protection.
As regards Amendment No. 32, the whole point of Clause 14 is that it enables a local authority to revoke an improvement notice. In the case of a notice served in response to a category 1 hazard, the authority may revoke that notice only if it is satisfied that there are special circumstances which make it appropriate to revoke the notice. In the case of a notice served in response to a category 1 hazard in a house in multiple occupation, the local authority might well come to the view that reversion of the premises to a single household occupancy amounts to special circumstances. That would relieve the pressure on the occupier. There is a legal view on this but it is common sense that it is no longer a house in multiple occupation if it is occupied by a single family.
We cannot agree that Amendment No. 30 is needed. I accept what the noble Baroness said about its purpose but the intention appears to be that the operative date for the commencement of remedial works should not fall from 28 days to 21 when the suspension of a notice comes to an end. However, the owner does not need 28 days as he will already know about the notice and does not need as long to prepare the works. As I say, the central issue is that of tenants interfering with work to the property. However, the fact is that the work is more than likely intended to protect those people. We must get the balance right here.
I hear what the Minister says. I am most concerned with Amendment No. 31 because I can see that the Minister sees some merit in Amendment No. 32 although I am not sure that he will accept it.
Amendment No. 31 concerns specifically the situation where you have a hazard of an obstructive tenant. We are talking about category 1 hazards. You may have a category 1 hazard of a tenant who is not prepared to allow works to go ahead. There may be umpteen reasons why that might not happen but equally there may be reasons why it would happen. Anyone who has anything to do with property knows that from time to time people come to very different views on what should be done to the property in which they live. It seems to me that the whole onus is still on the landlord to carry out the works in the face of obstruction. Such a situation renders it almost impossible for landlords to comply with the notice.
We need an escape clause here. I accept that both the amendments that I am discussing constitute escape clauses for the landlord which, judging from what the Minister said, I am not sure that the Government are happy to accept. In all fairness it is right that the landlord, if he cannot get the works done, has a reason for the notice to be suspended—there would have to be very clear and justifiable reasons—and the local authority would have to recognise that reason. On the other hand, if there is not something in the Bill that allows that, no exceptions will be allowed. That also counts where a house ceases to be in multiple occupation after the notice has been served, and where the landlord may have vacant possession for some reason—one hopes, legally—and would ultimately be left with a house for which they put in planning permission.
In the light of my words about an escape clause, is the Minister happy to review the matter? If not, I would feel strongly about it.
Perhaps I was not clear. I do not have a barrister's brief on the matter, but I was more or less saying that Amendment No. 32 is not necessary. That is because the local authority is allowed to revoke the improvement notice only if it is satisfied that special circumstances make that appropriate. If the dwelling has reverted from a house in multiple occupation to a single-family dwelling, those are special circumstances. Amendment No. 32 is not needed as the matter is more or less covered. I am happy to get legal opinion on that, because the local authority would see it as common sense that the house would not be in multiple occupation.
So far as concerns Amendment No. 31, life is full of people who will not co-operate or who have an axe to grind, but there are penalties in Clause 205 for obstruction. Of course, there is a defence for the person who fails to comply if he has a reasonable excuse. We might need to bear that in mind. I am happy to try to clarify the matter again. We feel that we have to get a balance in respect of not withdrawing a notice simply because there is a stroppy, destructive or obstructive tenant. There are penalties for obstruction, which could be used in the circumstances described.
moved Amendment No. 33:
Transpose Clause 14 to after Clause 15.
On Question, amendment agreed to.
[Amendment No. 34 had been withdrawn from the Marshalled List.]
Clauses 15 to 17 agreed to.
Schedule 1 agreed to.
Clause 18 agreed to.
[Amendments Nos. 34A and 34B not moved.]
Clauses 19 and 20 agreed to.
Clause 21 [Contents of prohibition orders]:
[Amendment No. 35 not moved.]
moved Amendment No. 36:
Page 15, line 13, after "persons" insert "as identified by the local housing authority"
Amendments Nos. 36 and 37 merely seek to bring greater clarity to what are at present vague descriptions of the terms under use. The amendments are perhaps not as serious as others but are none the less designed to aid the legislative process. If the Minister can give us a strong assurance today then we shall happily not return to them.
Amendment No. 36 would ensure that the local authority identified the property in question to which people could not return. It might have been better if the amendment had been inserted after the word "premises" in line 12, but the amendment is still clear. Although this may be the present intention, the Bill does not say so.
Amendment No. 37 attempts to bring a little transparency to the process. "Particular descriptions of persons" does not seem to be a suitably adequate term for the possible issuing of a prohibition order that would effectively bar someone from what is, or possibly had been, their home. I should welcome the Minister's assurance on these matters and seek to have line 14 include "specific individuals", rather than the vaguer term. I beg to move.
Perhaps I should start with a few words of background to Clause 21. It sets out the mandatory contents of prohibition orders. The order must set out the nature of the hazard, the category into which it falls, the deficiency giving rise to it and the remedial action which, if carried out, would result in the revocation of the prohibition order by the local authority.
An order may prohibit the use of part or all of the premises for some or all purposes unless approved by the local authority, or occupation of the premises or part of them by a particular number of households or occupants, or by particular descriptions of persons, unless approved by the authority. That is how we see the clause working.
The amendments would appear to be intended to enable an authority to identify particular individuals for the purpose of prohibiting them from residential premises—although the noble Baroness put us right on that. The second amendment removes the possibility that descriptions of persons could be prohibited by an order. The amendments appear to be intended to enable authorities to use prohibition orders under Part 1 to identify specific individuals, perhaps with a view to preventing occupation by particular individuals who are thought to be likely to engage in anti-social behaviour. That was one thought we had regarding the proposed change of wording. If that was the intention of the noble Baroness, I cannot see that it would fall within the scope of Part 1 of the Bill, which primarily addresses concerns about housing conditions and the means by which hazards arising from deficiencies can be assessed and mitigated rather than the condition of certain individuals in a particular house.
The amendments also fail to take account of the basis on which an order has been made and why it may be necessary to prohibit particular classes of occupants. The assessment may or will have identified a hazard that cannot be removed by an improvement notice. It may therefore be necessary for the authority to prohibit occupation by those groups of people most vulnerable to the hazard—perhaps the elderly or young children.
It should be remembered that the purpose of prohibition orders is to protect people and households from the hazards to which they are vulnerable. These amendments appear to our way of thinking to turn that purpose on its head. While we understand that the noble Baroness wants to bring greater precision through the amendment, we believe that it would cause obfuscation.
In practice, an authority will not choose to remove current occupants, thereby possibly creating a rehousing issue for itself, unless the hazard poses an immediate risk. It might suspend the order until it is triggered by a chance of tenancy. Those are the sorts of issues that can be dealt with more precisely in enforcement guidance. I hope that, having heard that, the noble Baroness will feel able to withdraw the amendment.
I said at the outset that I was seeking to bring greater clarity to the clause through the amendment. I am not sure whether the Minister's response helped in that regard. It has slightly obfuscated what I was trying to do.
I turn to the identification of the "occupation of the premises" and the premises to be identified by the local authority. I make it clear that the prohibition would be brought about on a property identified by the local authority as the property in question, but perhaps that is not necessary. Paragraph (b) states,
"occupation of the premises or part by particular descriptions of persons".
Our approach involves the phrase "specific individuals".
Most properties are lived in by not a great number of people. I am not sure what "a particular description of persons" means. The Minister suggested that my amendment might involve a person associated with anti-social behaviour. However, that is not what this is all about. If there is a prohibition notice and one is effectively stopping people from living in a property, even for a short time, what would be a "particular description" of a person? Would it be that the person opposite had only one leg or was a mother with a pram? Particular descriptions appear to involve a group, but if one had to identify specific individuals one would have to name them and say, "Those people cannot live here" for whatever reason. I believe that our amendment is better but I hear what the Minister said and I beg leave to withdraw it.
moved Amendment No. 39:
Page 17, line 18, at end insert ", or
(c) on an application made by the Member of Parliament for that district"
Amendment No. 39 would allow a local Member of Parliament effectively to petition the local authority to revoke or vary a prohibition order. The final decision would still be left with the local authority. However, it is possible that a Member of Parliament, following significant discussion with his or her constituents, would feel hard pressed not to do something to follow up their concerns.
I would imagine that such an action would be used very sparingly as a matter of last resort. The Member of Parliament in question would no doubt have taken due care and time to investigate the case before deciding on such a course of action. None the less, perhaps the Minister should give some thought to that, because it would improve the linkages between a Member of Parliament and his or her constituents. I beg to move.
This appears to involve a somewhat unprecedented position, but that may not be so. I should be grateful if the noble Baroness would give some examples of other cases. Otherwise, it appears to be rather de trop because the local authority will be close to the ground on the matter and its initiative can have that result. I am not sure what else is needed.
I am glad to echo the noble Lord's comments. This is a very peculiar amendment. I am all for Members of Parliament being thoroughly involved in constituency affairs. However, this is properly a housing authority matter and therefore a local government matter. At least, if we are to get into the question of local representations, one would have expected that local councillors would make representations on the issue. Frankly, it is hardly proper to put a Member of Parliament in such a privileged position in such a case.
I do not say that because I have anything personal against Members of Parliament; they are very worthy and honourable people and do very good jobs on behalf of their constituents. However, the amendment would give them too direct a right of intervention in affairs that are properly dealt with by a democratic authority that is specifically empowered to deal with the matter. I hope that my noble friend will not press the amendment or, if she intends to do something with it, that she will bring it back later with a proper mention of local democratic representatives. However, I suspect that the Minister will say that the whole approach is unnecessary.
This is dangerous territory indeed—the amendment has provoked internecine warfare on the Benches opposite and there have been claims from our Back Benches that there is no precedent for the approach. I agree with the noble Lord, Lord Borrie. My notes say that it is not quite clear what additional wisdom would be brought to the professional judgment of a local authority's environmental health officer by having a local Member of Parliament who is able to do that. I am not sure that I should go too far down that road; that might upset someone. I certainly would not want to upset many of my friends in another place. I have to be very careful with my noble friend Lord Rooker on the Front Bench; he spent many honourable years in another place and knows what it is to be a Member of Parliament representing his constituents, which he did very effectively.
The proposal is unprecedented and this is a rather strange amendment. In any event, I should have thought that the noble Lord, Lord Dixon-Smith, is right: this issue is probably more properly located with a local councillor. However, elected Members of Parliament are of course bound to make representations on behalf of constituents on particular issues. No doubt they would do so in any event by way of constituency casework. I do not believe that the amendment adds anything in practice. It is unnecessary and it would end up putting the local Member of Parliament in a rather difficult position from time to time when he or she was pressed by a constituent and he or she had to make a judgment. This is an extremely unwise departure from the accepted practice of simply making representations. Having heard that, I hope that the noble Baroness will think again and withdraw the amendment.
This amendment is not going anywhere with either side of the Chamber. I beg leave to withdraw the amendment.
moved Amendments Nos. 40 to 42:
Page 179, line 32, leave out "entitled or"
Page 180, line 8, leave out "entitled or"
Page 184, line 5, leave out "entitled or"
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Clause 29 [Offence of failing to comply with improvement notice]:
[Amendments Nos. 42A to 42D not moved.]
moved Amendment No. 43:
Page 20, line 14, leave out "reasonable" and insert "genuinely adequate"
With Amendment No. 43 we are again trying to probe the Government on what they actually mean in their description of "reasonable excuse" when it comes to failing to comply with an improvement notice.
It seems that in theory every excuse could in one way or another be described as "reasonable". We would of course welcome the Minister's thoughts on that. Furthermore, who will actually judge what is reasonable? Will it be the local authority, where one view of reasonableness may change from place to place? Surely it would have been sensible to issue some national guidance on this. Perhaps the Government are planning to do that; I do not know. Our amendment attempts to do that by making it perfectly clear what an acceptable excuse is. I beg to move.
I cannot contain myself any longer. The term "reasonable" is well used in legal proceedings, and clearly what is reasonable must be judged at the time on the merits of the case in question, and so on. I hate to suggest that work should not be made for lawyers, but introducing what I see as an entirely innovative phrase would make work for lawyers. Therefore, although I declare an interest as a practising solicitor, I do not think that the wording suggested in the amendment is a good idea.
I entirely agree with the noble Baroness, Lady Hamwee. I am not one of those who think that drafting cannot be improved from time to time, but if someone wants to move away from what is common form and is understood by lawyers and the courts to another phrase, which is what the amendment would do, a very good reason should be given for it. There are plenty of precedents for the phrase which is now in the legislation, and altering it would present something new, requiring fresh interpretation. The question was asked: who says whether this is so or not? In the end, the answer is that this is a defence in court. The courts are very familiar with this phrase, and I would leave it at that.
I do not think that either the noble Lord or the noble Baroness listened to what I said. I said at the start that I was trying to probe the Government on what was meant by the words "reasonable excuse". I did not say that I was pushing for the word "reasonable" to be changed. Clearly, we want to know the Government's thinking behind the term, and that is why the amendment was tabled. I hope that the Minister will explain the Government's thinking rather than turn this into an argument about the use of the word "reasonable" and other expressions.
I have nothing to add to what the noble Baroness, Lady Hamwee, and my noble friend Lord Borrie said. They employed the argument that I was intending to use. "Reasonable excuse" is an understandable defence. It can be brought in a court of law, where it is understood. As the noble Baroness, Lady Hamwee, said, the phrase "genuinely adequate" would be an entirely new concept in English law and would be completely inappropriate.
I do not think that this is a sensible amendment. It is completely inappropriate and totally unnecessary. It would undermine well established and understandable ways of working and presenting a defence in court. I see no merit in it at all. I hope that the noble Lord will not think that we are all ganging up on him, but I believe that he needs to take away this matter and think long and hard about it because it does not do anything for the Bill.
I did not think that anyone was ganging up on us. We have received a totally inadequate reply. What we want from the Government is an explanation of "failing to comply". This is a vague part of the Bill and we were trying to obtain an indication—or even, as I said later, some guidance—from the Government on what would be a reasonable excuse for not complying with a notice. However, in response, the Minister has simply talked about what is "reasonable" and not about what is a reasonable excuse for not complying with a notice.
We are entering rather difficult territory. We dealt with the same matter on a similar amendment yesterday. We need to think about the amendments and perhaps come back to them with a different approach at a later stage. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43A to 43E not moved.]
Clause 29 agreed to.
Clause 30 agreed to.
Schedule 3 [Improvement notices: enforcement action by local housing authorities]:
[Amendment No. 43F not moved.]
Schedule 3 agreed to.
Clauses 31 to 38 agreed to.
Clause 39 [Emergency remedial action]:
moved Amendment No. 44:
Page 25, line 13, at end insert "reasonable"
Amendments Nos. 44 and 45 again attempt to probe the Government a little about the circumstances in which they believe emergency remedial action would be taken and how the local authority should, in effect, go about it. We have had some discussion on this matter before. Perhaps, as a start, the Minister could provide us with some examples of when he believes that such action would be appropriate. We are also attempting to ensure that greater effort is made to inform individuals who might be affected by such action and to ensure that they are fully informed and aware of such developments. Again, that issue was covered in a similar amendment yesterday.
With Amendment No. 44, we return to the word "reasonable", which, on this occasion, I am seeking to insert before the word "time". Without that change, it seems to me that a local authority could enter a premises at any time if it so wished, including in the middle of the night. We all understand the need for such possible powers of entry. However, I am sure that they would be covered in other legislation relating to gaining access in the event of an emergency. Have we not just spent some time on this matter debating the Fire and Rescue Services Bill? I am not entirely sure that such powers would be desirable in this case, but I shall bow to any explanation that the Minister may like to provide us with.
Amendment No. 45 would ensure that the owner, as well as the occupier, of a property was informed of the local authority's decision to undertake such action. It seems to me that many of the properties that could well be covered under this section are likely to be rented properties at the lower end of the market where the owner does not live on-site. I cannot believe that a local authority would not at least make an effort to contact the owner before commencing emergency work. I beg to move.
Although, to be honest, I suspect that it would be a rare occurrence, it is envisaged that in this case the local authority could enter a property in the middle of the night. That is the whole point of the exercise. Clause 39 is headed "Emergency remedial action" and that is defined in subsection (2) at the bottom of page 24 of the Bill:
"'Emergency remedial action' means such remedial action in respect of the hazard concerned as the authority consider immediately necessary in order to remove the imminent risk of serious harm".
In other words, we are dealing with a crisis or emergency situation. Therefore, as the noble Lord said, it might well be the case that a local authority would have to enter a property without any warning in the middle of the night. The noble Lord's amendment would mean that that power could be exercised at any "reasonable time".
Amendment No. 45 would enable the notice of entry to be served on the owner as an alternative to the occupiers. Such a proposal would simply slow down the action required under Clause 39. The actions taken under some other section would follow a different set of rules. These are emergency measures where there is an imminent risk of serious harm. Listening to the lawyers, I should imagine that that is a well known, tried and tested term. I certainly hope that it is. I have heard it before and am fairly certain that it is understandable.
We are talking about a crisis or a serious situation. These powers are intended to be used to tackle the hazards at the upper end of category 1—that is, hazards that need to be tackled immediately. Examples of that might be to prohibit the use of a staircase that is so rotten that someone might fall through it at any moment, to support a wall that is in imminent danger of collapse or to remove the danger of exposed electrical wiring. In those circumstances, the top priority is to alert with the utmost urgency those who are at risk from the hazards—that is, the occupiers of the premises—rather than the owner who lives elsewhere.
That does not mean that the owner of the property is disregarded. Subsection (7) requires the authority to serve a notice of emergency remedial action on the owner—and on the others on whom the notice, or a copy of one, would be served in the ordinary, less urgent cases—within seven days of taking the emergency action.
In addition, subsection (8) applies Clause 204—that is, warrants to authorise entry—to enable the authority to enter premises to take emergency remedial action. The justice of the peace to whom a warrant application is made must be satisfied that there are reasonable grounds for believing that the authority would not gain admission without a warrant. In other words, the provision is dealing with a crisis situation and, if we were to include the words "any reasonable time", that might be held to be within normal working hours. In such a situation, the restriction to normal working hours could put people at imminent risk of serious harm.
I do not know what the piece of legislation is, but I understand that legislation already exists to deal with emergency entry into buildings if there is a real hazard—for example, as I mentioned during debate on the Fire and Rescue Services Bill, if a place is on fire or flooded. I cannot see that in order to take remedial action to a property it will, or should, be necessary to disturb anyone living in a home in the middle of the night. I do not accept what the Minister said. That may be the case if something is dramatically wrong, such as, I repeat, a fire or flooding or something akin to that, but if it is something such as a wall that needs replacing, I do not think that it would be right for people to enter a house at two o'clock in the morning when a family was asleep. That would be more frightening and worrying to the family. I do not really accept what the Minister said. What I suggested was that there should at least be some reasonable time—I would not say normal working hours but some sort of reasonable hour—when one could enter a property.
I also suggested that it would be right at that time to try to inform the owner that that was to be done if the owner is responsible for the property. Even if a notice is to be served on the owner in due course, it would be right to try to inform the owner that the property is being entered. I do not think that I received a satisfactory reply from the Minister. Usually, he gives pretty good answers. I do not know whether he would like to reconsider this. Does he really think that families should be disturbed in the middle of the night for fairly minor things? I think that it is quite unreasonable.
These are not "minor things". We are talking of being at,
"imminent risk of serious harm", and I gave examples of such circumstances. What brings about those circumstances in out of work hours, I do not know. It might be a bit of "do it yourself" in the next door property. I was once being driven here on my way to work one morning and three buildings had fallen down in one of the poshest parts of London because someone had been working on a building next door. You cannot just leave things like that. This is,
"imminent risk of serious harm", brought about by what and caused by what at unusual hours I do not know. If people in the property are at risk of serious harm, we cannot ring Timbuktu or Monte Carlo where the owner might live and say, "By the way, can we get cracking with this? Send us a fax", or, "We'll fly someone out to sign the papers". That is self-evident. I think that I have given a very good answer to this.
I have an even better one now. The Local Government Association—the noble Lord opposite is leader of a major council—is a key player in this. The Chartered Institute of Environmental Health wants the powers. As has been said, the test for using such powers is very stiff.
moved Amendment No. 46:
Page 25, line 21, leave out "; but"
Amendments Nos. 46 and 47 continue the theme of publicising and informing the intent of a local authority to undertake emergency action on a property. This is a little like the previous amendment and some amendments we debated yesterday.
We believe that it is far from satisfactory for a notice to be served merely if it is pinned to a part of the building or a nearby lamppost. How many people read such notices? What about the effects of the weather? We see that all the time. This appears to be a rather haphazard way of going about things and would allow the local authority to do the bare necessity when it comes to making an effort to inform those affected of its decision to enter the premises and carry out work.
I stress, however, that I am in sympathy with the difficulty of what a local authority is being asked to do. No doubt the Minister will ask me what my alternative would be. However, that is, perhaps, not the intent of the amendment. Rather, it is designed to draw attention to an issue that we would otherwise have passed over. Amendment No. 46 is consequential to Amendment No. 47 in this regard. I beg to move.
I have tabled two amendments in this group. On Report in another place the Minister made it clear that local authorities can take action to deal with very urgent hazards regardless of whether an appeal is lodged against the improvement notice. However, there is a view that this clause does not make that entirely clear.
My amendments would ensure that frivolous or vexatious appeals against emergency enforcement action under Clause 44 do not unduly frustrate action by local authorities when they try to secure the removal of hazards which will represent an immediate risk to the health and safety of occupants. I hope that the Minister can address these concerns, which have been raised with me by members of the Chartered Institute of Environmental Health.
If I may, I shall deal with the amendments in reverse order. Amendments Nos. 48 and 49 are certainly well intentioned; there is no question about that. They seek to prevent an appeal against emergency remedial action delaying the action and preventing the authority from getting on with the work. However, we believe that the amendments are unnecessary.
There is no provision for an appeal under Clause 44 to interfere with the operation of the remedial action under Clause 39. There is nothing to prevent the authority from carrying out the intended works. In practice, the works will have been carried out promptly. By definition, that is the nature of emergency measures. An appeal is more likely to consider whether the action was right rather than just stop the work being done. So the amendments are well intentioned but unnecessary because the work can be done.
Amendments Nos. 46 and 47 would remove the provision that enables a notice of entry to be regarded as served if it is fixed on a conspicuous part of the premises or building. It is necessary to have this provision in cases where the occupiers cannot be contacted or the premises are empty and the hazard is to other people such as neighbours. You would not put the notice on the part of the building that is about to collapse. It would have to be conspicuous but left standing; I accept that. It is not unknown that an owner cannot be contacted. There was a semi-detached 1930s-type house in my constituency causing major problems—I can remember the road—and no one knew who the owner was. Trying to trace the owner was a serious problem. The local authority wanted to take action at a particular time and could not, and the matter was dealt with a long time afterwards. So, that is not unknown. Legally, you need to make some effort. You might have no address, no phone number and no key holder but the neighbours might be under threat and emergency measures might be required.
The amendments would place obstacles in the way of the local authority carrying out the emergency work. I stress, and repeat, that Clause 39 applies only in exceptional cases where there is an imminent risk of serious harm. This is not the ordinary type of case which is dealt with in Part 1. This is an exceptional part of the Bill. We really do believe that we need these reasonable powers.
I thank the Minister for that reply. I accept that there has to be some immediate action and probably the only way forward at present is to post a notice on a nearby property or part of the house. One would hope with the advent of modern technology and as time moves on that there might be other ways of informing people, but probably that is a few years ahead. However, often these notices are very unsatisfactory. As I said earlier, when it pours with rain they are defaced. One sees that with planning applications. However, there is no other answer at present and I accept what the Minister said. I beg leave to withdraw the amendment.
moved Amendment No. 50:
Page 29, line 30, leave out from first "in" to "the" in line 31 and insert "all of the flats in"
Amendment No. 50 would forbid a local authority to make a demolition order on an entire property unless the local authority could show that under the rating system a category 1 hazard was present in all flats contained in the building. This is, in essence, another probing amendment designed to tease from the Government their understanding of what circumstances would prevail for a demolition order to be served.
In theory, a demolition order may be served if there is only one instance of a category 1 hazard present. That raises some interesting questions. Were that to happen, what would be the fate of other individuals living in adjoining flats? Would they be rehoused or simply expected to find other accommodation? How many such orders do the Government expect will be issued every year?
Subsection (9) states that compensation may be available in certain circumstances. Perhaps the noble Lord could confirm whether individuals living in adjoining flats would be covered, and covered in full, under this rather vague statement.
That leads me on to Amendment No. 52, which also tries to bring greater clarity to this area of compensation. Who would decide on the level of compensation and in which circumstances it would apply? We might end up with a mishmash of a system which varies from one authority to the next. Surely it would be better to have published guidance about compensation on a national level, as our amendment seeks to achieve.
The intent in Amendment No. 51 is similar to that in Amendment No. 52. They attempt to understand the Government's thinking when they say that different provisions may apply in different locations and circumstances. Again, I would welcome the Minister's thoughts. How can we have a scheme that applies in one area but not the other?
Clause 48 deals with the local authority's power to charge in cases of enforcement or possible enforcement action. While we can understand that there are situations in which a local authority may want to charge before issuing a notice, we are concerned that, as the Bill presently stands, an authority could still decide to charge although it does not actually serve an enforcement notice. Our Amendments Nos. 55 and 56 would therefore allow an authority to charge only where a notice had been served. That seems a more sensible approach.
These amendments would also appear to apply equally to subsection (3) in cases where an authority was deciding whether to take emergency remedial action. Again I am unsure about the justification or merit of that approach. I therefore look forward, as ever, to the Minister's reply. I hope that he will be able to enlighten me in the gloom and uncertainty surrounding many of these issues. I beg to move.
I think I had better carefully take the Committee through this group of amendments and explain some of the background.
Clause 45 substitutes a new Section 265 of the Housing Act 1985 to align the demolition order provisions with the hazard assessment and enforcement provisions in Part 1 of the Bill. That retains the provisions on demolition in the 1985 Act, of which I am sure the noble Lord is well aware as it was put on the statute book during the lifetime of his party's government. The device that we have used avoids the further lengthening of the current Bill.
Where a local authority has a duty to take the most appropriate enforcement action under Clause 5 in relation to a category 1 hazard in residential premises, making a demolition order is one of the courses of action available to it, unless the premises are the subject of an interim management order or final management order under Part 4. Clause 45 also gives a local authority discretion to make a demolition order if it is satisfied that a category 2 hazard exists, but only in circumstances that may be specified or described by the order.
Amendment No. 50, as the noble Lord has set it out, would prevent a local authority making a demolition order in respect of a building containing one or more flats unless a category 1 hazard existed in all of the flats in the building. I think that the Committee will recognise that that is an extremely stiff test and not one that we feel we can support at all. I recognise that a demolition order is a major step, and I think that the noble Lord will appreciate that these would be extreme circumstances. It is perhaps the most severe step that an authority can take in respect of a single building.
However, it is perhaps worth reminding the Committee that an authority, when confronted with a category 1 hazard, has a duty under Clause 5 to take the most appropriate form of action. In the case of such a hazard in a single flat or in a few of the flats in the building, it may be expected that the authority will be able to deal with the situation in some other way, probably by serving an improvement notice or perhaps by making an order to prohibit the use of a particular flat while the matter is dealt with.
I should also like to draw the noble Lord's attention to Section 269 of the 1985 Act which provides a right of appeal against a demolition order. Section 269A of the Act makes it a possible ground of appeal that the best course of action in the circumstances was not a demolition order but one of the other courses of action for which Part 1 provides.
It is clear, therefore, that there is redress against an authority that oversteps the mark by setting out to make a demolition order without considering very carefully whether another course of action would have been more appropriate and perhaps more proportionate in the circumstances.
Amendment No. 51 would effectively prevent a local authority making a demolition order in response to a category 2 hazard in a building containing one or more flats. The arguments that I deployed in response to the previous amendment also apply here. No authority in its right mind is going to demolish a building in response to a category 2 hazard if there is a better and easier solution to hand.
The Government's view is that such a solution is likely to be available in the majority of cases. However, we do not wish at this stage, or in the future, to remove the option of demolition entirely because it may well be appropriate in extremis. That is why Clause 45(4)(c) limits such action to circumstances specified or described in an order made by the Secretary of State or the National Assembly for Wales.
The Government have no immediate plans to bring forward such an order and would consult very carefully before doing so. We would need strong persuasion that such an order is necessary. Until such an order is made, it will not be possible for an authority to make a demolition order in the circumstances that are clearly troubling the noble Lord.
Amendment No. 52 would require the appropriate national authority to specify the circumstances in which compensation paid following the making of the demolition order may be repaid. This amendment would come into conflict with Section 58(4)(a) of the Housing Act 1985, which makes detailed provision for repayments and requires disputes to be referred to the Lands Tribunal. I do not feel that the intervention of the appropriate national authority in matters in which the Lands Tribunal has great expertise is likely to improve the wisdom of decisions to be made on the repayment of compensation.
Amendments Nos. 55 and 56 seem to intend to ensure that charges can be made only in respect of notices on orders that have actually been served or made. We do not think that those amendments are necessary at all as Clause 48(1) already has that effect. So that point is already covered.
I have spent some time going over the detail. I appreciate that the noble Lord was asking also for other information. I cannot provide figures, but we think that a relatively small proportion of a total of 50,000 annual enforcement actions of all kinds will fall into this category. Compensation will arise if the whole process, including any appeal procedure, is exhausted. However, I cannot provide much more information this evening on that point. I am quite happy to have further research undertaken and to write to the noble Lord on the issue.
I thank the Minister for that very full response. I think he agreed with our sentiments that it is not very desirable to demolish a whole block of flats housing many occupants because of a problem in perhaps one flat. I am also grateful that he said he would look at my list of questions in detail and come back with answers to them. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 to 53 not moved.]
Clause 45 agreed to.
Clause 46 [Clearance areas]:
[Amendment No. 54 not moved.]
Clause 46 agreed to.
Clause 47 agreed to.
Clause 48 [Power to charge for certain enforcement action]:
[Amendments Nos. 55 and 56 not moved.]
Clause 48 agreed to.
Clause 49 [Recovery of charge under section 48]:
moved Amendment No. 57:
Page 33, line 29, leave out subsections (7) and (8) and insert—
"(6A) If such an appeal is brought and a decision is given on the appeal which confirms the underlying notice or order, the demand becomes operative at the time when—
(a) the period within which an appeal to the Lands Tribunal may be brought expires without such an appeal having been brought, or
(b) a decision is given on such an appeal which confirms the notice or order.
(6B) For the purposes of subsection (6A)—
(a) the withdrawal of an appeal has the same effect as a decision which confirms the notice or order, and
(b) references to a decision which confirms the notice or order are to a decision which confirms it with or without variation.
(7) As from the time when the demand becomes operative, the sum recoverable by the authority is, until recovered, a charge on the premises concerned.
(8) The charge takes effect at that time as a legal charge which is a local land charge."
On Question, amendment agreed to.
Clause 49, as amended, agreed to.
Clause 50 agreed to.
Clauses 51 to 53 agreed to.
Clause 54 [Licensing of HMOs to which this Part applies]:
moved Amendment No. 58:
Page 36, line 10, at end insert—
"( ) any HMO in the authority's district of three storeys or above or in which at least five people live,"
I have given notice to the Minister of my intention to degroup Amendment No. 58 from Amendments Nos. 58A, 62A and 65. I think that he is happy about that. Although all the amendments in the group concern one topic, I realised that it is a substantial group of amendments. I initially thought that we would manage, but in view of the approaching dinner hour it would be much more helpful for everybody if I were to address Amendment No. 58 separately.
Amendment No. 58 is a probing, but serious, amendment. It is designed to try to persuade Ministers to introduce a more inclusive mandatory houses in multiple occupation licensing scheme. The Bill provides for the threshold for mandatory licensing to be specified in regulations. The Office of the Deputy Prime Minister has indicated it intends that those regulations will require only houses in multiple occupation with three or more storeys and five or more occupants to be licensed. The ODPM estimates that that will cover only 120,000 houses in multiple occupation, which is about 19 per cent of what we think are 638,000 houses in multiple occupation in England. Our key concern is that the proposed threshold will leave thousands of vulnerable tenants in unidentified and hazardous HMOs, because they will fall outside the scope of the mandatory licensing scheme.
Evidence from local authorities—I am grateful also to Shelter for briefing me on this matter—shows that a significant proportion of large, two-storey houses in multiple occupation and smaller shared dwellings are sub-standard and poorly managed. It is felt that all houses in multiple occupation with three or more storeys, and at least five occupants, should be licensed.
The area that I represented as a councillor in Southampton was close to the university. I saw many family houses go over to multiple occupation. We had all kinds of problems with them. I am sure that other Members of the Committee who have been councillors in those kinds of areas know the sort of problems that exist.
Evidence on fire risks, in particular, does not support the Government's thresholds. The 1996 Entec report on fire risk identified all three-storey houses in multiple occupation as high risk, regardless of their occupancy levels. In 1997, research by the ODPM's predecessor, the Department of the Environment, Transport and the Regions, found that 52 per cent of houses in multiple occupation fire deaths occurred in buildings of three or more storeys, even though only 16.5 per cent of households lived in such buildings. So a tenant who lives in a bedsit in a building of three or more storeys is almost 17 times more likely to be killed by a fire than an adult who lives in a single-occupancy building.
I have been lobbied also by various other houses in multiple occupation groups. Leeds HMO Lobby and the Nottingham Action Group referred particularly to student accommodation and they made similar comments to those that I have made.
Surveys of authorities by Shelter and the National HMO Network suggest that, at most, only half of local authorities will extend their license schemes to include smaller, but some still potentially hazardous, houses in multiple occupation. I know that the Government want to stick to their definition of HMOs, with local authorities being able to deal with other houses under other selected licensing arrangements. Another recent survey of local authorities demonstrates significant support among local authority environmental health departments for a more inclusive mandatory scheme.
The Government have said that local authorities can use the discretionary powers to extend the licensing of small houses in multiple occupation, but there are concerns about how the scheme will operate. The extended discretionary licensing scheme is subject to the approval of the Secretary of State and it is limited to a period of five years. Local authorities will be required to consult interested parties on the needs for additional licensing of houses in multiple occupation. Landlords are likely to be the main respondents and in many cases they might oppose the additional licensing for human reasons.
House in multiple occupation tenants in poor housing are an extremely hard-to-reach group who may fear eviction if they complain too loudly to the council The process will have to be repeated every five years. There are concerns that perhaps a future Secretary of State who objects to the principle of houses in multiple occupation licensing will be able to reject a local authority's application to extend the scheme, irrespective of its merits. It is therefore essential that the Office of the Deputy Prime Minister at least publishes guidance setting out the factors to which it will have regard in reaching a decision about such an application.
The proposed threshold for mandatory licensing of only large houses in multiple occupation of three or more storeys and five or more occupants is over-cautious and inadequate. It will not cover the majority of smaller, dangerous, poorly managed houses in multiple occupation in which living conditions for tenants can be pretty bad. There is a desperate need for intervention to ensure that basic minimum health standards are met for tenants in such properties. Without mandatory licensing, they are unlikely to be identified and the problems are unlikely to be tackled.
Shelter is most concerned about the position, as are the Chartered Institute of Environmental Health Officers and various houses in multiple occupation groups. I therefore hope that the Minister can give us some comfort. I realise that it is difficult, knowing the Government's view, but I believe that there is a good case for widening the provision. I look forward to the Minister's response. I beg to move.
I agree with a great deal of what the noble Baroness, Lady Maddock, said. She made a strong case for many more houses in multiple occupation than those covered by the intended government regulation. As she indicated, that will apply to only 19 per cent of the total number of homes in multiple occupation.
The noble Baroness said that the Government were being over-cautious. I have no doubt that the Government are being cautious and one reason the noble Baroness did not mention was resources. The resources of the local authority to deal with this real problem will no doubt improve and increase as time goes by. However, current and near-future resources are limited. Above all, it would be wrong to put on the face of the Bill anything like what is proposed by the noble Baroness, as distinct from a provision made by regulation, which is the Government's intention. It may be that the government intention to use a regulation at the beginning may be over-cautious. But it can be changed. If something in the legislation is not inappropriate now—as I suggest that it is—it could in any case become inappropriate as time goes by. Surely the Government's method of approach, by making the definition about what applies in the regulation, is much better than including it in the Bill.
This is a crucial part of the Bill, and I speak in support of the amendment moved by the noble Baroness, Lady Maddock. The noble Lord, Lord Borrie, puts his finger precisely on the point at issue: how far can one go, how much at this stage can one say, in seeking to improve standards and bring this fairly forceful set of regulations to bear on landlords whose tenants are the most vulnerable and in the worst circumstances? That balance is what we are discussing. No one wants to drive landlords so hard that we diminish the supply even of appalling accommodation, because we have acute shortages of homes to rent. Even the worst landlords are putting a roof over people's heads.
So the balance must always be: how far can we go without doing more harm than good in regulating the sector. I think that we can go further than saying that mandatory licensing would apply only to those cases where there are houses of three storeys or more that contain five people within them.
Courtesy of the Brent Private Tenants' Rights Group, I visited a number of properties in north London, in the Brent, Harlesden and Wembley areas. In particular, I looked at those properties that would not be covered by mandatory licensing, because, for example, they consisted of only two storeys but were awful properties in which there might be seven or eight people. I went to see houses in Harlesden with long back additions where people were living in conditions that I well remember visiting in the 1960s, which we have been led to believe are a thing of the past. No, slums with landlords who harass their tenants are still out there; landlords still behave badly—and not only in properties that are three storeys high.
The difficulty here is getting the balance right. Because of the pressures on resources for environmental health officers and more generally in local government, mentioned by the noble Lord, Lord Borrie, local authorities will not be willing or able to do more than is imposed on them as a duty. Therefore, where one draws the line of mandatory licensing and where one leaves it to the local authorities to go further at their discretion, is important. I believe that we can go further than this fairly timid and cautious approach and be firm on the worst of landlords.
As the noble Lord, Lord Borrie says, this represents 19 per cent of houses in multiple occupation—that is, about 120,000 properties out of about 640,000 houses in multiple occupation. Those 640,000 are a relatively small part of all the homes let by private landlords, which number about 2 million. So we are down to a very small proportion of the sector as a whole—just 19 per cent of part of the sector—and the question is whether being tough, getting involved with that part of the whole, is going too far and whether we should be more or less cautious.
Even if these matters are the subject of regulation, will the Minister consider keeping an open mind about whether the "three storeys and five people within the home" provision is really going far enough? Might there be a chance of persuading him to agree to a slightly bolder version of the regulations when we see the small print later?
I shall join the debate only briefly because the noble Lord, Lord Best, has made my blood run cold with his perfectly apt description of some of the houses in the north parts of Kensington and Brent. However, we must be careful here not to put our foot on this part of the market completely. All landlords and people who run houses in multiple occupation are not rogues or presiding over houses in a terrible state of disrepair. So I urge a bit of caution here. In fact, the provision concerning a house of three floors with five tenants will bring into the regulations a substantial number of properties which may or may not be necessary.
We cannot support the amendment as it stands. I suggest that we remember that, although there are terrible landlords, some are also very good, doing a good job and supporting the people who are living with them.
I suppose that I should start by saying that I have sympathy with the point being made. I used to represent a ward with many students who lived in terraced houses of only two storeys. Yes, more than five people were living in them. But, on the other hand, from a great deal of contact with students living in those circumstances—as a student, I lived in not dissimilar circumstances—I have to question the proportionality of the measure proposed by the noble Baroness, Lady Maddock.
I start by reminding the Committee exactly what the Government propose and shall then return to the points that have been raised. Clause 54 requires houses in multiple occupation falling within the definition set out in the clause to be licensed by local authorities. The definition of an HMO in the clause is: any HMO falling within a description to be prescribed by order by the appropriate national authority. The Government's intention is to prescribe that the definition be: houses of three storeys and above in which at least five people live who form more than one household; and any HMO situated in an area designated by a local authority as subject to additional licensing under Clause 55 and which is of the description set out in the designation. That is how it will work.
As the noble Baroness said, Amendment No. 58 would insert in the Bill the definition of an HMO to which mandatory licensing should apply as: any HMO of three storeys or above, regardless of occupancy, or any HMO, regardless of the number of storeys, that is occupied by at least five persons. So that would be a fixed, rigorous definition in the Bill, without the flexibility that we require.
Amendments similar to these were tabled and extensively debated in another place. Of course there was a divergence of opinion as to when the requirement for mandatory licensing should apply. Our scope for mandatory licensing of HMOs is those of three stories or more occupied by five or more persons. We have always made clear that we have adopted three-storey HMOs as the starting point for mandatory licensing because we take the view—there is evidence to support it—that the greatest risk from injury or death affects those properties. I doubt whether there is any dispute about that. Of course, one can argue about the configuration of properties—the point was made about properties with extensive back additions, and so on.
The number of occupants in each dwelling is also an important factor to be considered. The greater the number of storeys in an HMO, the higher the number of occupants is likely to be, so we would expect the risk of fire to increase in such a building. We are aware that there are many HMOs of fewer than three storeys occupied by five people more, but those persons are far less vulnerable to injury from fire than those in three-storey houses.
I also appreciate that there are some HMOs of three storeys occupied by four persons, but it is far more likely that a three-storey building will house more people. I can only reiterate that the greater the number of people living in a property, the higher the risk of fire.
We take the view that a line must be drawn somewhere on where HMO mandatory licensing applies. The Government believe that that line should be drawn at houses, as we have set out. We recognise that licensing will impose burdens on landlords and local authorities. It is therefore, in our view, unreasonable to impose licensing where it is not needed. The Government do not believe in excessive or undue regulation. Therefore, we have made mandatory licensing a targeted measure. That is why we have adopted this route. The noble Lord, Lord Borrie, made the point for us. We must attack the problem where it is worst and be proportionate in the use and distribution of the resource that we apply to it.
Local authorities have, and will continue to have, discretionary powers to license problematic categories of HMOs within their areas. The very circumstances about which the noble Baroness is concerned can be addressed by the local authority using its discretion. If a local authority establishes that there are management problems with all HMOs of, say, three storeys or more occupied by four people, or all HMOs occupied by five persons, which justifies licensing, we are giving them the facility and tools to do so through additional licensing.
The noble Lord, Lord Best, asked about our future intentions. It is our firm intention to carry out a review of licensing within three years of its introduction. The reason why the scope of mandatory licensing is not on the face of the Bill is so that the scope can be changed if necessary through secondary legislation. So if the review finds that licensing should apply to a wider, or perhaps narrower, range of houses in multiple occupation, we have the power to implement that finding. We have the flexibility required if a wider band of houses in multiple occupation is an evident problem.
So the local authority has discretion to act and we have left ourselves scope to adapt and fine tune the range of HMOs that could be caught within the legislation through a secondary legislative route. I certainly understand and appreciate where the noble Baroness, Lady Maddock, is coming from and have seen the sorts of problems that she describes. But we have left sufficient flexibility to address that issue and we think that the local authority will have sufficient flexibility to act if it identifies a problem.
I thank the Minister for that very full answer and other noble Lords who have commented on the amendment. I recognise the observation by the noble Lord, Lord Borrie, that it would not be very wise to include this provision in the Bill. However, as he will appreciate, it is very difficult to amend secondary legislation. Therefore, the only mechanism at my disposal is to raise the matter here. I agree with the noble Lords, Lord Borrie and Lord Best, that it is important that we get the balance right. I appreciate the point made by the noble Baroness, Lady Hanham, that not all landlords are bad landlords.
Nevertheless, there is a problem. The Minister talked about the discretionary powers for supplementary licensing. As I pointed out, those powers are not easy to use. I am conscious of the hour, so perhaps we can return to the matter later. Perhaps we can reach a compromise whereby we widen the scope a little. I appreciate the assurance that the Government will keep the matter under review; I hope that they will. The Minister talked about the number of three-storey properties with four occupants. I do not have figures on that, but if there are any such properties, perhaps we should look at them before Report. In the mean time, I beg leave to withdraw the amendment.
I beg to move that the House do now resume. In doing so, I suggest that the Committee stage not begin again before 8.45 p.m.