Leasehold and Freehold Reform Bill

Debate between Lord Young of Cookham and Baroness Pinnock

Committee stage
Wednesday 24th April 2024 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I am grateful to my noble friend Lord Borwick for allowing what I hope will be a short debate on the deferment rate. I am conscious that I am a very inadequate substitute for the noble Lord, Lord Forsyth.

The deferment rate is very important, as my noble friend Lord Moylan explained. It is the current value of the vacant possession of a flat when the lease expires. According to what deferment rate you choose, it affects the premium that is paid by the leaseholder. My understanding is that the current deferment rate was set in a Court of Appeal case in 2007—the so-called Sportelli case—which ended up with the two rates that I think my noble friend Lord Moylan referred to: 4.75% for houses and 5% for flats. That was fixed nearly 20 years ago. There was a recent appeal decision in a Welsh court—I have the name in front of me but, like many Welsh names, it has a large number of consonants and very few vowels, so I am afraid that I cannot pronounce it. The appeal failed because the land valuer was not an economist, but it opened the way to an appeal to alter the rate. My noble friend Lord Moylan touched on my first question: when will the Secretary of State come to a decision? It affects what leaseholders do at the moment: whether they should wait for a preferential rate, which might be fixed by the Secretary of State, or whether they should try now, in case it moves the wrong way.

I want to raise a totally different point. At the moment, there already is a deferment rate set by the Government under the personal damages Act 1996. Using exactly the same basis as a deferment rate for leasehold, the Lord Chancellor sets the deferment rate for personal injury damages. Unlike what is proposed in this Bill, that rate changes quite often. In 2017, the rate was changed, and it was a negative rate for some time. It was changed again in 2019, and then again in 2023. It is now 0.5% for short-term cases and 3% for long-term cases. My question for the Government is: will we have two separate Secretaries of State fixing deferment rates at different times and coming up with different rates, or is there a case for rationalising the Government’s view as to what is an appropriate deferment rate?

One opportunity would be for the Secretary of State simply to replicate what the Lord Chancellor does. The Lord Chancellor has recently had a consultation on how to fix deferment rates and has come up with a short-term rate and a long-term rate. It seems odd to me to have two totally separate systems in the Government for basically coming to the same decision—that is, deciding what the long-term rate is on a risk-free investment. I wonder whether my noble friend the Minister has had discussions with the Lord Chancellor’s department to see whether we can have a common approach to this important issue.

[Baroness Pinnock (LD)]

My Lords, for me, this is a very technical set of amendments, but they are very important. As we have heard, this issue can have significant implications.

I always go back to first principles. One of the aims of the Bill is to make enfranchisement cheaper than it is currently, and so more readily available. However, as we have heard, that will entirely depend on the deferment rate and how it is set. My understanding was that the current deferment rate was set by the Court of Appeal in 2007, as the noble Lord, Lord Young of Cookham, said. The debate is around whether it is right for that to continue; whether another process should be used, such as that proposed by the noble Lord, Lord Borwick, in his amendment about using the bank rate as a base for setting a deferment rate; or whether, as in the Bill, the responsibility is passed to the Secretary of State to determine the deferment rate. I have to agree with the noble Lords, Lord Moylan and Lord Young of Cookham, that the latter does not seem right.

When I was investigating the deferment rate issue, I noticed that Homehold Services Ltd gave evidence to the Commons Public Bill Committee that was very telling. It criticised the fact that the “applicable deferment rate” was referenced throughout the Bill

“without specifying what this will be”.

It provided an example of what effect a change in the deferment rate could have on the cost of enfranchisement. It said:

“A lease extension … on a £200k flat with 80 years unexpired and no ground rent would be c. £4,000”.


That is the example given by Homehold Services Ltd; as it is one of the experts, I thought it might be right. It continues:

“If the deferment rate was reduced from 5% to 4%, the premium would increase to c. £8,500. At 3.5% it would be … £12,000”.


Those small changes in percentages have very high consequences for the leaseholders. This is important—that is what the evidence told me when I read it.

The argument from Homehold Services Ltd was that the deferment rate must be set no lower than that set by the appeal judgment in 2007. Otherwise, the consequence is that the rate can escalate considerably, as the noble Lord, Lord Moylan, pointed out. The cost of enfranchisement would increase, removing the ability of many leaseholders to continue with the process—contrary to one of the objectives of the Bill. Can the Minister say what consideration the Government have given to the deferment rate?

The noble Lord, Lord Young of Cookham, said that the Chancellor’s department has had a consultation on this and come up with some figures. Why are those not being adopted in this instance to set the rate in the Bill? As we have heard, it is very important to know exactly what the deferment rate will be. I do not believe that it is satisfactory to leave the applicable deferment rate to be set by a statutory instrument some time in the future. Surely, if the Government’s intentions are as they are set out in the Bill—to make it cheaper for leaseholders to enfranchise—one of the key rates must be this one. Therefore, I would have thought that we would want to see it set during the course of this Bill, rather than wait for a statutory instrument.

I have a lot of sympathy with the arguments that have been made by the mover of the amendment and others about the need for certainty here, rather than a principle and uncertainty as to the exact figure at which the deferment rate will be set.

Leasehold and Freehold Reform Bill

Debate between Lord Young of Cookham and Baroness Pinnock

Committee stage
Monday 22nd April 2024 Lords Chamber

[Lord Young of Cookham (Con)]

I want to raise a slightly different point from the one raised by the noble Baroness, who is worried that there are loopholes in the schedule. My concern is slightly different, in that the schedule currently bans a form of lease that is actually beneficial. I refer to an arrangement called Home for Life, which has been operating for some time and is based on somebody who is over 60 selling their home. Homewise, which operates Home for Life, then buys the property to which the person moves and grants them a lifetime lease. That enables them to vacate a large family home, gives them the security of the home they move to and, in many cases, releases a sum of money that enables them to expand their income.

There are a number of exemptions under the schedule; this scheme is not one of them. This is, in fact, contrary to what the Government said when they consulted on this a few years ago, when they made it absolutely clear that they would exempt these leases. I quote from paragraph 252 of the Government’s response to a consultation document, Implementing Reforms to the Leasehold System in England:

“It is not the intention of the policy to affect lease-based financial products (home reversion plans—equity release, home purchase plans—lifetime leases and Islamic/Sharia compliant finance), so long as they do not provide a loophole from which to evade the ban. For both home reversion and home purchase plans the provider acquires the freehold and the consumer has a non-assignable lifetime lease. Because these leases are not assignable to another party there is no risk of such leasehold houses coming onto the open market”.


They concluded:

“We will provide an exemption from the ban for these financial products”.


The product I have just mentioned falls squarely within the terms of the exemption that I just read out, but I am afraid it is caught by the Bill as it now stands. I hope my noble friend the Minister will be able to say that this is an unintentional capture of a worthwhile type of lease and that the Government will provide the necessary amendment downstream so that Home for Life can continue to provide a worthwhile service, which I do not think is a loophole of the kind described by the noble Baroness, Lady Taylor.

[Baroness Pinnock (LD)]

My Lords, this Bill is really very important. It has been a long time since Second Reading, so I think it is worth reiterating some of the fundamentals that we hope it will achieve.

The first is that this is obviously a huge opportunity to reform the leasehold/freehold property rights and relationships. That is certainly one of the key aspects that we on these Benches will pursue with vigour. It is also an opportunity to tackle the huge omissions in the Building Safety Act to provide remedies for those leaseholders and tenants living in blocks of flats that are under 11 metres or five storeys. As we have all through the debates and discussions on the Fire Safety Act, the Building Safety Act and the levelling-up Act, we on these Benches will continue to pursue the safety of leaseholders and tenants in those blocks of flats, because that is the right thing to do.

On these amendments, we on these Benches acknowledge that there will, of course, be areas in the leasehold/freehold arrangement where the abolition of leasehold impinges on other important rights, so we accept that there will be examples where an exception is justifiably made. However, the noble Baroness, Lady Taylor of Stevenage, is absolutely right to probe the reasons for these exceptions, in this group and in the following group, and has drawn attention to them individually. For example, the noble Baroness drew attention to a situation where the developer has a head lease and has yet to build out to the development. She asked the pertinent question of what happens if leasehold is going to be abolished for houses. Where does that fit in with a development that is ongoing that will be developed under the terms of a leasehold? That is not explained either in the Bill or in the Explanatory Notes.

We on these Benches understand the importance of this for historic estates that are now owned by the National Trust in England, Wales and Scotland. The purpose of the leases in those instances ought to be protected, because the overwhelming responsibility is the protection of our national heritage. That makes good sense. However, although the schedule provides details of which properties are eligible for what was described as “permitted leases” under the tribunal certification, what is not clear in either the clauses or the schedule, or in the Explanatory Notes, is what criteria the Government are using to enable some leaseholds to be described as permitted. Can the Minister provide the reasons for the choices made by the Government in determining permitted leases in Schedule 1? This is important because the legislation will be challenged in the future. It is therefore vital that, before we get to Report, we understand the reasons, as well as the purpose, behind the tribunal certification. Perhaps the Minister can provide the details of the regulations that are to be provided to the tribunal for making those decisions.

The two examples used by the noble Baroness, Lady Taylor of Stevenage, and the noble Lord, Lord Young of Cookham, relating to retirement housing and homes for life, strike me as being very important in our discussions. Those of us who have been involved in leasehold, and in the debate about leasehold and some of the criticisms of the way in which leasehold is implemented in practice, have been astonished by the way in which some retirement housing service charges have risen exponentially, without, it seems, any recourse to an explanation or a reduction. It is important to understand, for both homes for life and retirement housing—one of which is referred to in the schedule and the other which is not, as the noble Lord, Lord Young of Cookham has said—how protections will be provided for these very important areas of housing in order to provide protection for the leaseholders in these arrangements.

We support the probing amendments of the noble Baroness, Lady Taylor of Stevenage, and look forward to the detailed response, I hope, from the Minister.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I will speak to Amendment 7 in my name, which deals with shared ownership—one of the issues touched on by the noble Lord, Lord Khan. Shared ownership was developed in the 1980s and I claim some paternal responsibility for it. It was a route into affordable homes, and there are now some 200,000 shared owners.

There is a risk that shared owners will fall between the cracks between conventional leaseholders and those who rent. The Government are doing a lot for the conventional leaseholder. Under the Renters (Reform) Bill, they plan to do a lot for the conventional renter, and as I said, there is a risk of shared owners falling between the cracks. If one looks, for example, at the New Homes Ombudsman Service, which I greatly welcome, and the new homes quality code under it, the protection does not extend to affordable homes—namely, those sold under a shared-ownership scheme.

The reason for this amendment is a report, which I am sure my noble friend has seen, from the Select Committee in another place published on 26 March entitled Shared Ownership. The crucial thing to remember about this is that it was published after the Bill left the other place. Therefore, these are comments on the Bill as we see it today. I will briefly quote from three relevant paragraphs from that report.

Paragraph 80 states:

“When we asked Baroness Penn about this issue”—


shared ownership—

“she told us that the provisions of the Leasehold and Freehold Reform Bill are intended to make it easier for those on the old form of the lease to extend when needed. However, Shared Ownership Resources have said that shared owners will not benefit from the leasehold enfranchisement reforms included in the Bill, as, as assured tenants, they do not have statutory rights to leasehold enfranchisement”.

I hope my noble friend can assure me that shared owners do have the right referred to in that statement—the right to enfranchise—and that the fact they are technically assured tenants does not mean they are precluded from the rights in the Bill. Paragraph 92 reaffirms that point:

“We also believe that it is unacceptable that shared owners do not have the same statutory right to leasehold extension as other leaseholders”.


My final quote is from paragraph 94:

“Finally, the Government should ensure that any legislation passing through Parliament which has provisions to reduce the cost of, and simplify, the process of leasehold extension (for example, as in the Leasehold and Freehold Reform Bill) also applies to leaseholders in shared ownership properties, so that shared owners have the same statutory right to leasehold extensions as all other leaseholders”.


It is clear from those quotes from the recent report that the Select Committee holds serious doubts about the entitlement of shared owners to some of the rights in the Bill.

Shared-ownership leases are often complex. Leases on flats, for example, with multiple sub-lessees with different rights and responsibilities, can add further complexity. It is worth mentioning that shared owners are liable for all legal and other administrative costs of superior leaseholders and freeholders, although they only own, for example, 50% of the property. As a result, they can be paying more in service charges than other people in the block, simply because they have that extra relationship with the registered provider as well as the freeholder.

When a shared-ownership owner, for example, extends the lease and the property is valued, they pay 100% of the legal costs, although they only own 50% of the property. The explanatory notes to the Bill state, on page 8, paragraph 20:

“The Bill also gives shared ownership leaseholders the right to a lease extension for 990 years”.


However, the registered provider—the shared ownership’s immediate landlord—may have only a short-term interest in the lease as a head lessee or a sublessee. So, what happens when the shared-ownership leaseholder exercises the right, but the registered holder says, “I’m very sorry but I don’t have 990 years available; I only have a short lease”? Is there an obligation in the Bill for that registered provider to get a long lease, which, in turn, is passed on to the shared owner?

Turning to Condition C in the Bill, which my probing amendment addresses, I wonder whether this precludes certain shared owners from the right to a lease extension. Paragraph 6(6), on page 136, states:

“Condition C: the lease allows for the tenant’s share in the house to reach 100%”.


However, some shared-ownership leases have caps. They have caps at 80% in a designated protected area, and a cap of 75% in older persons shared ownership. So, are these groups excluded, or does paragraph 6(2) come into play, which says that the Secretary of State can exclude Condition C if the lease is of a description he has specified? Again, I would be grateful for an assurance on this.

My final point, which was also raised by the Select Committee, is that there is a broader risk of a two-tier market in shared-ownership leases following the changes in lease terms as part of the affordable homes programme.

My noble friend the Minister may want to reply to this in a letter, but shared owners want an assurance that their entitlements have been properly take on board during the Bill’s drafting, particularly against the background of the Select Committee report that I have just referred to, which makes it clear that there are anxieties that the interests of shared owners are not adequately reflected in the Bill.

[Baroness Pinnock (LD)]

My Lords, there are two elements of this category of permitted leases that are worthy of further exploration. One—on which the noble Lord, Lord Young of Cookham, has gone into great detail, questioning how it will work—relates to shared ownership. The second is to do with agricultural leases.

I would like the Minister to explain, first, why agricultural leases cannot be subject to tribunal certification, rather than the current self-certification process. There does not seem to be a reason why that does not occur under the first element of permitted leases.

There are other issues, such as shared ownership and self-certification, that are not necessarily covered in the details the noble Lord, Lord Young of Cookham, went into, but which are very important. I would like to understand how self-certification will be subject to challenge, what the process is and how such situations can be resolved. Will it be a costly process? If so, granting permitted leases for shared ownership, and agricultural leases, becomes an expensive legal minefield for those caught up in it.

So, I would like to understand why agricultural leases are not in the first set of certifications for permitted leases, and how challenges can be resolved. I look forward to what the Minister has to say.

Levelling-up and Regeneration Bill

Debate between Lord Young of Cookham and Baroness Pinnock

Report stage
Wednesday 13th September 2023 Lords Chamber

[Baroness Pinnock (LD)]

My Lords, I remind the House of my relevant interests as a councillor and a vice-president of the Local Government Association.

Throughout the debates on the Bill, we have all agreed on the importance of having a plan-led approach to development. Therefore, an effective local authority planning service is key to implementing timely decisions on planning applications. The House of Commons Levelling Up, Housing and Communities Select Committee issued a report on planning reforms earlier this year. The report stated that the National Audit Office found that local authority planning services had been cut by £1.3 billion over a 10-year period to 2020, which equates to a 55% reduction in service spending. That is from the National Audit Office, so we cannot argue with those figures.

A Local Government Association survey in 2022 found that 58% of councils had trouble in recruiting planners—and, in county councils, that rose to 83%. The Royal Town Planning Institute estimates that one in 10 planning officer posts are not currently filled. From my own experience in my council, I know that senior planners are enticed into the private sector, leaving councils less well equipped to deal with complex applications. The enormous stress on planning services has the consequence of putting an additional delay on development, which adds programming problems for housebuilders and developers of commercial units. Amendment 235 in my name and that of the noble Lord, Lord Young of Cookham—who I thank for adding his name to an amendment on issues that we both raised separately in Committee—would insert a new clause to address those practical issues. It would enable a local planning authority to set a level of fee that covers the costs of a planning application.

I appreciate that the Government have agreed to increase planning fees by 35% for major applications and by 25% for all other applications. Of course, that is a step in the right direction. However, nationally set fees fail to take into account regional differences in costs; they also fail to reflect the actual costs of dealing with very complex developments, either very large housing sites or commercial developments.

This national approach to fee setting results in council tax payers subsidising complex planning applications. That cannot be right. The stark fact is that 305 out of 343 local authority planning departments had a deficit totalling £245.4 million in 2020 and 2021. That is a huge sum, where council tax payers are subsidising housebuilding developers, for example, who are well able to meet the costs of a planning application in full.

In addition, of course, there are the Government amendments that the noble Earl, Lord Howe, has spoken about this morning, which are a good step forward in conceding the argument made by the noble Baroness, Lady Young of Old Scone, about statutory consultees being paid for the work that they do—that is right and proper. But this adds to the bill that local authority planning services have to pay and it adds to the cost. All in all, there will be additional costs for the work being done. I think that the Government have made some concessions to the principle that the noble Baroness, Lady Young, has asked about and I support that. I wish that they had gone further, as she argues, but it is one step in the right direction.

I will of course listen carefully to the response from the Minister to Amendment 235, but I feel strongly about this issue. It is not a matter of principle; it is a practical amendment to enable local authority planning services to provide the service that they are required to do and that they want to do, but for which they need the funds to do. If the Minister is unable to concede that principle, I will be minded at the appropriate stage to test the opinion of the House on this matter.

[Lord Young of Cookham (Con)]

My Lords, I have added my name to Amendment 235, which I proposed in Committee and to which the noble Baroness, Lady Pinnock, has just spoken. Since Committee, the need for it has become more urgent, as reflected in the report of the Levelling Up, Housing and Communities Select Committee in July, which concluded:

“The Government’s reforms to national planning policy will fail if local authorities lack sufficient resources to implement them. The package of support which the Government has outlined does not go far enough to address the significant resourcing challenges which local authorities currently face”.


I support the amendment for two reasons. First, I do not believe that the Government should be controlling the fees charged by planning departments, as a matter of principle. They do not control other local authority fees—building regulations, parking fees, library charges, school meals, swimming pool charges—so why planning? A national cap does not reflect the different circumstances of local authorities.

The case for relinquishing control is made stronger by the aspirations in the levelling up White Paper, with its commitment to

“usher in a revolution in local democracy”.

The revolution is stopped in its tracks by the notion that local authorities should not be free to recover the costs of their planning departments.

In reply to my amendment in Committee, my noble friend the Minister said that

“having different fees creates inconsistency, more complexity and unfairness for applicants, who could be required to pay different fee levels for the same type of development. Planning fees provide clarity and consistency for local authorities, developers and home owners”.—[Official Report, 24/4/23; col. 1003.]

Let me briefly dissect that. As far as local authorities are concerned, they are the ones who sponsored my original amendment. They have since confirmed their continuing support with this statement:

“We support this amendment. Planning fees do not cover the true cost of processing planning applications. In 2020/21, 305 out of 343 local authority planning departments operated in a deficit, which totalled £245.4 million”.


As far as developers are concerned, they already have to cope with myriad different local plans and can well manage different fees. What the developers want are well-resourced planning departments that can effectively process their applications quickly. One of the reasons for the disappointing housebuilding performance is planning delays. The amendment addresses that. As for home owners, I do not think that they know that planning fees are set centrally and they are used to local authorities having different charges for libraries, parking, allotments and the rest. I do not think that they would mind if fees were set locally, as long as they got a good service.

Secondly, I do not think it right that council tax payers should have to subsidise the planning system—the hidden subsidy referred to by the noble Baroness, Lady Young. There are more important calls on those resources, underlined by the financial problems facing Birmingham City Council. The Minister told us that the Government were consulting on increasing the fees, but in the words of the Local Government Association:

“We welcome the Government’s commitment to increase planning application fees. However, our modelling has shown that even if all application fees were uplifted by 35 per cent, the overall national shortfall for 2020/21 would have remained above £80 million”.


In his opening speech, my noble friend referred on several occasions to full-cost recovery for provision of services. That is exactly what this amendment does.

I conclude by quoting the Times, which recently, on 7 July, summed up the position:

“Britain’s planning system is grinding to a halt, with four out of five big applications now being delayed by up to two years.


Official figures show that more than half a million new developments have been delayed during the past five years as threadbare planning departments struggle to cope with even routine cases.


Industry experts said the delays were exacerbating the housing crisis, with developments now taking up to three years to get started. Councils are supposed to give developers a decision on big projects within 13 weeks, but the latest official data shows that only 19% of applications were processed in this time over the past year, down from 57% 10 years ago … Developers say that performance is damaging efforts to tackle the housing crisis and other government priorities such as installing wind and solar farms. They warn that unless the government insists on proper funding for planning departments, the housing crisis will worsen as councils will always choose refuse collections over planning when allocating scarce resources.”


The noble Baroness, Lady Pinnock, has made a powerful case and I hope that the Government will reflect in their reply on the further measures that are now needed.

Levelling-up and Regeneration Bill

Debate between Lord Young of Cookham and Baroness Pinnock

Committee stage
Thursday 20th April 2023 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I wish to intervene briefly to put this debate in an important context. Before I do so, I commend the noble Lord, Lord Best, on eventually achieving the victory which he sought when the 2016 Act was going through; it was not the best piece of legislation on housing that Parliament has seen. I agree with what the right reverend Prelate said—that we should unfreeze the local housing allowance or, if we cannot, increase the discretionary housing grant, to enable those who find that they cannot meet the rent to have more support.

I also agree with the noble Lord, Lord Stunell, that “affordable” is a misnomer, but there is a fundamental choice that we have to make, which is: the higher the rents, the more social houses you can build; and the lower the rents, the fewer social houses you can build. That is simply because of the way that social landlords are funded. A Government decide to have a capital fund available for new builds. A Government of a different persuasion may have a higher figure than the current one but, whatever that figure, the number of houses that can be built is dependent on the rent levels which the social landlords can charge.

A Housing Minister has a choice: you can have lower rents, social rents or genuinely affordable rents, but you will get less output. When I had responsibility and was faced with this spectrum, I went for slightly more output but slightly higher rents, to meet the demand for new houses and to build more houses that would last 60 years. I recognise that others may choose to go the other way on the spectrum, but you cannot get away from the fact that this is the choice. If you want to have affordable rents reduced to social rents, the consequence is that you will have fewer houses. I make this intervention at the end of this debate just to put it in a slightly broader context.

[Baroness Pinnock (LD)]

My Lords, I have two amendments in my name that I wish to speak to briefly. However, prior to that, I say that my noble friend Lord Stunell made an important point about how all the amendments here are trying to resolve the issue of what is affordable. So-called affordable homes are those built by the commercial sector as part of a development—a planning obligation—yet the challenge for us all is to provide homes at a social rent, which is roughly estimated as 50% of the market rent.

It is a tragedy for this country that successive Governments seem to have abandoned provision of homes for social rent in any large numbers. Local authorities have been severely constrained in building their own social housing, and the provision of homes for social rent has largely been left to housing associations. We then come to the conundrum which the noble Lord, Lord Young of Cookham, just rightly pointed to—that the capital that housing associations receive from government depends on their flow of rental income. Therefore, do you have more or less? Either way, everybody agrees that there are insufficient homes for social rent.

About 30 years ago, my authority had 42,000 council houses at social rent—it now has 21,000. That is the scale of what has happened. Indeed, my noble friend Lord Stunell is absolutely right that about half of them are now back in the market as private rented properties at a higher rent for folk but without any of the support packages provided for homes for social housing rent within either a local authority or a housing association. That is a huge challenge that this country needs to tackle. One of the key factors in levelling up is a decent home—it is in the levelling-up missions. Millions of people in our country do not live in an adequate, safe home appropriate for their family, and we need to address that scandal.

On affordability, my noble friend Lord Stunell expertly laid out the issues, and I do not wish to say anything, except that obviously I totally support him. I wish to raise one issue about affordability that is a bit of a side issue. It seems that any property built as part of a commercial development which is deemed affordable should be affordable in perpetuity. My own council adopted that policy—I have to say as a result of pressure from my own party there—so that, when the house is bought, the 80% factor remains. The least the Government could do is to include that as part of a definition of affordability.