Localism Bill

Lord Rix Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Shipley]

My Lords, I shall speak to a number of amendments standing in my name and those of my noble friends on these Benches, and I shall speak first to Amendments 170D and 171A. They would extend from two to five years the period in which the homeless duty on a local authority would recur, and provide for a household accepted as homeless to receive reasonable preference on the local authority’s allocation scheme during the five years, arising from the household’s need for stable housing. Without these amendments some very vulnerable people could face increased vulnerability.

The Government’s housing White Paper last November confirmed their commitment to tackling homelessness and protecting the most vulnerable in society, and confirmed their belief that social housing should continue to be prioritised for the most vulnerable, given that this could be the only way that they would gain access to a secure home. These are people who may have been in care, had a mental illness or disability, been a member of the Armed Forces, or served a custodial sentence. Groups such as these need security and support to set up and manage a home successfully. It is difficult to see why an acceptance that such people are priority homeless should now be so constrained.

The impact of changes to local housing allowance means that households dependent on full or partial housing benefit will be pushed into the cheaper part of the private rented sector without any reasonable preference for a permanent and affordable home. I believe and would suggest that the Government should stick to their commitment in their housing White Paper that the existing reasonable preferences categories should remain unchanged to ensure that social housing is clearly focused on those who need it most. Local authority duties cannot simply be discharged by offering a single short-term contract with a private landlord.

Amendment 171ZA provides a framework for the exercise of the right of review that is presently enjoyed by applicants for social housing. The present statutory scheme for allocation of social housing and the re-cast scheme proposed in Clause 128 contain provisions enabling applicants to seek reviews of adverse decisions on their applications. The problem is that the current Act and the new clause are silent as to the procedure to be followed if an applicant exercises those rights. Our amendment suggests that a fair mechanism for resolving reviews would be as laid out, and essentially replicates the procedural rights enjoyed by homeless applicants who seek reviews of homelessness decisions under the Housing Act 1996. The amendment also reflects basic good practice that some local authorities have already incorporated into their local schemes. The need for structure to be applied to review procedures was recognised by the Government many years ago, and I understand that an ODPM letter to local authorities sent on 11 November 2002 promised further guidance. That guidance is still to arrive and the amendment in my name makes good that omission.

Amendments 171D and 172A restore the requirement that a final offer of accommodation under the homelessness duty must be reasonable for the applicant to accept. In fact, these amendments to Clause 129 simply restore the law to its current position. At present, Section 193(7)(f) of the Housing Act 1996 provides that a housing authority shall not make a final offer of accommodation, including approving an offer of private sector accommodation, to a homeless applicant,

“unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer”.

The requirement that it is reasonable to accept the offer has been removed by Clause 129(9) for no obvious reason and this amendment would restore that condition. A recent case in the Court of Appeal considered that while a flat may have qualified as suitable in terms of size and location, the council concerned should have gone on to consider the wider question of whether it was reasonable for the family to accept it, ruling that “suitability” and “reasonable to accept” are overlapping but different concepts.

This piece of legislation is very important where there are aspects of accommodation, or more likely the surrounding environment, that would not prevent the accommodation itself being objectively considered as suitable but would have a detrimental affect on the applicant. Examples could include the risks of racial harassment or violence by individuals unknown to the applicant, or a risk to the welfare of the applicant where the accommodation offered is in a neighbourhood associated with drug use or dealing and where the applicant is a recovering drug addict. It could include the perceived risk of harassment or violence by individuals known to the applicant, such as a violent ex-partner whose relatives, friends or associates live in the neighbourhood. I hope my amendment is seen as a sensible way forward—to restore the law simply to its current position. It is about making it clear in the Bill what process should be followed.

Amendment 173ZB would create a statutory duty on local authorities to record all approaches they receive from people in housing need, including those who apply for social housing, those who express an interest in applying, those who are considered to be homeless by the local authority and those who consider themselves to be homeless. Requiring local authorities to collect data on all housing or homelessness approaches that they receive would provide a clearer picture of the genuine level of housing need that exists in a local authority area. Such data are essential to inform the localised planning system and the local tenancy strategies introduced by the Localism Bill, particularly as restrictions on social housing waiting lists could reduce the extent to which these lists can provide an indication of housing need.

Amendment 173AA seeks to define the suitability of accommodation secured under homelessness duties; it should be affordable and take into account such matters as distance of the accommodation from employment opportunities, any disruption to the education of children and young persons, the risk to the applicant of isolation, the level of support available to the applicant in the district, such as closeness of families and friends, the availability of medical treatment where appropriate and any caring responsibilities of the applicant in relation to another person.

If local housing authorities are able to discharge their main duty with potentially one offer of private rented accommodation, it becomes much more important that this offer is suitable for the needs of the household. At Third Reading, the Minister, Andrew Stunell, said that he recognised there are some concerns and that he was prepared to consider further the need for additional protections for homeless households placed in the private sector. It is very welcome and I would be pleased to see the Government come forward with concrete proposals to deliver that objective.

It is a question of getting this on to the face of the Bill. At Second Reading, my noble friend the Minister stated that the accommodation crucially must be suitable, which covers a wide gamut of issues including affordability, size, condition, accessibility and location. We need that on the face of the Bill.

Amendment 173ZC is about a household being deemed to be in priority need but intentionally homeless. In this case, the authority must provide not only advice and assistance but suitable accommodation for a period that will give the householders a reasonable chance of finding accommodation for themselves. Amendments 173ZE and 173ZF are self-explanatory, I hope. They relate to extending the period to five years to enable reapplication after a private sector offer and enable people to maintain the right to an offer for a longer period.

Amendment 1738B relates to the Homelessness Code of Guidance 2006, which states at paragraph 8.32:

“where a person applies for accommodation or assistance in obtaining accommodation, and:

(a) the person is an assured shorthold tenant who has received proper notice in accordance with s21 of the Housing Act 1988;

(b) the housing authority is satisfied that the landlord intends to seek possession; and

(c) there would be no defence to an application for a possession order; then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s21 notice”.

There is a major issue here, because the Secretary of State plainly considers that, ordinarily, a tenant in such circumstances—that is, one who has been properly served by a Section 21 notice—should be accepted as homeless by the local housing authority. The problem is that local housing authorities rarely do so, but will accept an application only at the point of eviction, thus causing anxiety to the tenant and his or her family, which could be avoided, and needless incurring of costs.

I realise that I have tabled a number of amendments. I would be very happy for the Minister to consider us talking further about some of these issues over the summer, but they are all exceedingly important in protecting the rights of tenants.

[Lord Rix]

My Lords, I speak to Amendments 171 to 173, which are scattered among other amendments in the group. Amendment 171 is concerned with the allocation of housing. Mencap, of which I am president, hears stories on a daily basis from parents of learning-disabled offspring about how difficult it is to find a suitable home for their son or daughter. That is why many people with a learning disability continue to live with their parents, often into late adult life. Mencap's report some years ago, The Housing Timebomb, highlighted that about 29,000 adults with a learning disability still live with parents who are over 70.

Although the “reasonable preference” groups—which guide local authorities and their decisions as to who should be housed as a priority—highlight the people who need to move on medical and welfare grounds, including disability, people with a learning disability still struggle to be regarded as in urgent need of housing. At that point, living with parents puts them in the position of being in “settled accommodation” and therefore less of a priority in terms of both homelessness and medical reasons.

To resolve that problem, my amendment is aimed to change the “reasonable preference” categories so that anyone who has an assessed housing need in the context of a community care assessment should be included in the “reasonable preference” groups. That would make it clearer to local housing departments that housing need, in the context of someone with a learning disability, has to be seen in a broader sense than is currently the case, and help to improve this unhappy situation.

Amendments 172 and 173 concern the ways in which local authorities discharge the homelessness duty. The Bill proposes that people can be placed in the private rented sector without due regard to the wishes of the homeless applicants themselves. Currently, a homeless applicant can reject an offer by the local authority to move into private rented sector accommodation. My amendment would introduce appropriate safeguards so that if an individual were placed in private rented accommodation, their needs would be properly addressed.

There are many reasons why people may not consider accommodation offers in the private rented sector to be suitable, including insecurity of tenure and, of course, cost. If the provision is enacted, strict safeguards should be in place to ensure that the accommodation which disabled and older people are offered, and have to accept, is appropriate, affordable and provides some security of tenure. That is why Amendment 173 proposes to increase the minimum period of such a tenancy from just 12 months to 60. This will provide the security of tenure that is so important to many people with a learning disability and their parents.

I am also encouraged by the Government’s comments during Report in the House of Commons, in which it was outlined that they would,

“consider further the need for additional protections for homeless households placed in the private rented sector”.

Ministers also said that they would be,

“prepared to consider using those powers for the provision of additional protections on standards of accommodation or other matters”. —[Official Report, Commons, 18/5/11; col. 408.]

I look forward to hearing from the Minister whether the Government have had any further thoughts on this, including the possibility of introducing a national accreditation scheme.

--- Later in debate ---

[Lord Rix]

My Lords, my Amendment 174 also concerns the Government’s proposal to introduce flexible tenancies of just two years for social housing tenants. The promotion of flexible tenure is based on the notion of non-disabled younger adults having access to other housing options, depending on income levels and employment. I am concerned that this approach is not appropriate for people on low or fixed incomes, especially those with disabilities who may have limited or no other housing options available. Many disabled people may also need adaptations to their homes or rely on informal support networks, which can take many years to establish. Many disabled people consider security of tenure to be essential to both their quality of life and their well-being. Over the years, many tenants build up local support networks and use nearby services which enable them to remain independent. I am therefore extremely concerned by the proposal to introduce two-year tenancies and the reluctance to make an exemption on the face of the Bill for certain groups, in particular those who are disabled.

At the Report stage of the Bill in the House of Commons, the Under-Secretary of State at the Department for Communities and Local Government, Andrew Stunell MP, outlined that the Government,

“propose that five years should be the minimum term in normal circumstances. We would expect it to be appropriate to offer less than five years only in very exceptional cases”.

He also confirmed that,

“the tenure standards will provide specific protection for the vulnerable”.—[Official Report, Commons, 18/5/11; cols. 403-6.]

I welcome these comments as they show some recognition that disabled people require further protective measures. However, I do not think that standards alone are adequate enough to protect disabled people from flexible tenancies. Hence, Amendment 174 aims to place an explicit exemption on the face of the Bill for disabled and older people.

--- Later in debate ---

Moved by

[Lord Rix]

175: Clause 139, page 134, line 15, after “partner” insert “(priority successor)”

[Lord Rix]

Amendments 175, 176, 177 and 178 regard the Government's intention to remove succession rights for carers and relatives, which are currently provided by a secure tenancy. In contrast to the Government, I believe that this right should be preserved and extended to all new tenancies in the social housing sector. The original provisions in the Housing Act 1985 gave recognition to the role of carers who had given up their own homes to look after a parent or a relative. We already know that unpaid carers make a significant contribution to the welfare of disabled and older tenants and dramatically reduce the demands on social services, the NHS and, of course, the Treasury.

The provision in the Housing Act 1985 also ensures that a disabled son or daughter living with parents, often into old age, would be protected after their parents have died. In 2006 the Law Commission recommended a single social tenancy that would allow a “reserve successor” on the death of a “priority successor”. A priority successor would be a spouse or partner, and a reserve successor would be a relative or carer living with the resident before their death. At the end of the Report stage in the House of Commons, the Government made some amendments to the clause on succession rights that will allow for succession rights for tenants other than spouses or civil partners, where,

“an express term of the tenancy makes provision for a person other than such a spouse or a civil partner of the tenant to succeed the tenancy”.

I welcome the Government’s acknowledgement that restricting succession rights to spouses and civil partners alone is not appropriate. However, I am still concerned that the changes proposed do not go far enough, and I do not believe that the government amendments which follow mine affect my concerns. I beg to move.

[Lord Kennedy of Southwark]

My Lords, I am sorry; I was too slow in getting to my feet. I support Amendment 175 in the name of the noble Lord, Lord Rix, and other amendments in the group. Clause 139 removes the statutory right of succession of those other than spouses and partners to succeed to secure tenancies granted after the Bill comes into force, except where an express term of tenancy makes provision for this. I understand that this clause has been inserted to assist local authorities in dealing with under-occupancy of social housing following succession against the background of a chronic shortage of social housing and correspondingly long waiting lists.

There is concern on these Benches that these proposed changes are likely to have a disproportionate effect on vulnerable people. Presently, close family members are able to succeed to secure tenancies. In addition, local authority tenancies sometimes contain an express provision to provide succession rights to close family members. The proposals under Clause 139 would mean that any family member other than a spouse or a civil partner would not be able to succeed to any form of secure tenancy unless there was an express tenancy term making provision for this. Even then, that person’s succession would have to be in accordance with that term. This provides considerable discretion to social landlords to operate a term in their agreement that may make it virtually impossible for a member of a family, other than a spouse or a partner, to succeed to a tenancy.

Local authorities are under pressure to ensure that their housing stock is fully utilised. The removal of the right of succession beyond spouses and civil partners is potentially damaging. Many of those currently eligible to succeed a close family member may have remained living at home with good reason—perhaps because of a disability or some other vulnerability. No doubt local authorities also see remaining in the parental home a number of single adults who have no vulnerability or disability but simply have no inclination to move out. However, we are concerned to ensure that protections for the vulnerable are not removed unwittingly. Restricting the right of succession under the Bill to a spouse or civil partner goes too far, as other potentially vulnerable family members may be living at the property and have little choice about their living arrangements. If the change under the Bill goes ahead, there will be no prospect of anyone close to the deceased who may have lived in the tenancy all their lives securing such a succession unless it is specifically stipulated in the tenancy terms.

There will be little incentive for local authorities or landlords to include an express provision in their tenancy agreements. Local authorities, which currently make such express provisions for succession by non-spouses—with unsecured tenancies, for example—may well cease to do so once the statutory succession rules are changed, with an increasing number of new tenancies being granted without express provisions on succession. The Government should carry out a more detailed impact assessment of the removal of such a provision and of the extent to which the removal would affect the construction or granting of secure tenancies.

Amendments 175, 176, 177 and 178 would create a condition allowing close family members to become qualified reserve successors to a secure tenancy, as per the current system. Reserve successors would be qualified to succeed only if, at the time of the tenant’s death, the dwelling house was occupied by a spouse or civil partner of the deceased tenant as his or her only or principal home. There are alternative measures for addressing under-occupancy following succession, by making existing grounds for possession under-occupancy function more effectively.

In conclusion, I look forward with interest to the noble Baroness’s response. I hope that she is able to give the Committee some reassurance on these important matters.

[Baroness Hanham]

My Lords, before responding, I wonder whether I may speak to the amendments in this group that stand in my name—Amendments 178ZA, 178ZB, 178ZC and 178ZD. Amendments 178ZA and 178ZB are minor and technical, and tidy up Clause 139.

Amendment 178ZC ensures that there will be no statutory succession in the case of shared ownership properties, as this could conflict with the rights of a beneficiary in a deceased shared owner's will. Amendment 178ZD ensures that where there is no eligible successor but someone inherits the balance of a fixed-term tenancy as part of the deceased tenant's estate, the landlord can recover the property. Amendment 178ZD helpfully deals with an issue raised by the Opposition in the other place. When someone who is not a spouse or partner succeeds to a local authority property which is larger than they reasonably need, the landlord can move them to a more suitably sized property between six and 12 months after the death of the original tenant.

The amendment deals with cases where the successor tenant withholds news of the death of the tenant from the landlord until after the recovery window has closed, thereby preventing the landlord reclaiming the property. It does this by allowing a court to decide whether the window is deemed to have opened six months after the original tenant died or six months after the landlord became aware of the death. I hope that is reasonably clear.

I can reply to the amendments quite quickly. Our proposals guarantee one succession to a spouse or partner and importantly also allow landlords a freedom to grant more successions, as they see fit; for example, allowing a succession to someone as the noble Lord, Lord Rix, has said, who has given up their own home to move in and care for the tenant. We believe that the proposals are clear, simple and fair: one guaranteed succession to a spouse or partner and anyone else if the tenancy agreement says so. That will allow landlords to ensure properties go to those in actual need and Amendments 175 to 178, tabled by the noble Lord, Lord Rix, would reintroduce a prescriptive approach which would prevent landlords considering individual circumstances in reaching sensible decisions. Once again, social landlords are social landlords and are meant to be considering the best interests of those who live in their properties. With that explanation, I hope that the noble Lord, Lord Rix, will be willing to withdraw his amendment.

[Lord Rix]

My Lords, I have no desire to delay your Lordships’ holidays any longer, so I beg leave to withdraw my amendment.

Amendment 175 withdrawn.