Burdens in respect of renewal
areas: proportionality
32. Where a safeguard above is marked "retained
as necessary protection", the Order leaves the original legislation
substantially unchanged, and the proportionality test does not
have to be met. Those safeguards marked "reenacted burden"
or "new burden", however, must be proportionate to the
benefit expected to result from their creation or enactment.[23]
In each case apart from that requiring authorities to have regard
to any guidance issued by the Secretary of State, which is substantially
unchanged from the burden imposed by the current legislation,
the burdens imposed by the Order are less onerous than those imposed
by the current legislation (being designed to achieve the same
end but in a less prescriptive manner). The benefit expected to
result from the creation of these new burdens, and from the reenaction
of the requirement to have regard to guidance, is the maintenance
of necessary protection of individuals against the misuse of the
power to declare renewal areas. The burdens do not appear to
us to be disproportionate to this benefit.
33. The explanatory memorandum presents the amendment
relating to the specification of the duration of a renewal area
(see para 31 above) as a new burden. We suggest that this provision,
which gives authorities discretion to decide upon the period for
which the area will be a renewal area, and the power to extend
that period if they consider it appropriate, could be regarded
not as a new burden, but as a reduction of the burden represented
by the imposition of a 10-year period which cannot be altered.
If that is the case, the provision does not have to meet the "proportionality"
test. Nevertheless, the Department argues that "it is important
in terms of confidence and expectations that both residents and
private interests (e.g. lenders, business, investors) within the
area know how long the authority intends to commit to the area";
and that such knowledge constitutes the benefit expected to result
from the imposition of this burden. As such, insofar as this
provision can be considered to impose a new burden, it does not
appear to us to be disproportionate.
GENERAL POWER TO GIVE ASSISTANCE
34. A number of further new burdens would also
be imposed by the proposed Order. These new burdens take the form
of limitations on the exercise of the powers conferred by the
Order, and may be either entirely new burdens, such as the requirement
to publish a policy on housing renewal assistance; or represent
extensions to new areas of existing burdens, such as the requirement
for an authority to satisfy itself that the owner of the living
accommodation concerned has consented to the carrying out of assisted
works (a requirement which currently applies to grants, but which
would be extended to any assistance given under the new general
power). Those burdens are as follows:
- Affordability: The
Order would require that, before imposing or enforcing any condition
relating to repayment or the making of a contribution, authorities
must have regard to the person's ability to afford to make that
contribution or repayment.
- Financial advice:
The Order would require that authorities must set out in writing
the terms and conditions under which the assistance is being given,
and satisfy themselves that recipients have received appropriate
advice or information about the commitments (including financial
ones) that they are taking on.
- Published policy:
The Order would require each authority to act only in accordance
with a published policy on housing renewal assistance. The Government
and the Assembly would advise in non-statutory guidance what issues
they need to cover in their policy, such as:
- how their policy links in with their wider housing
strategy, linking to health and social care strategies for vulnerable
groups and also to wider planning and regeneration strategies;
- how much assistance is available, and in what
form;
- who is eligible for assistance, and in what circumstances;
- the form and process for applying for assistance;
- the circumstances in which a grant or loan must
be repaid; and
- the advice, including financial advice, that
is available to help people to access grants and loans.[24]
- Consent to works:
The Order would require that authorities must be satisfied that
the owner of the living accommodation concerned has consented
to the carrying out of assisted works.
- Variation of scheme:
The Order would require that authorities must seek the consent
of those concerned if they want to vary, or require the variation
of, assistance or works.
- Provision of information:
The Order would give authorities the power to require an applicant
to provide information to support their application for assistance
(e.g. proof of ownership, financial details and contractors' estimates)
or to prove, after assistance has been given, that they are complying
with conditions that the local authority has set. This may constitute
a burden on the individuals concerned.
1 Copies are available to Members from the Vote Office
and to members of the public from the Department for Transport,
Local Government and the Regions. It is also available on the
Cabinet Office website http://www.cabinetoffice.gov.uk/
regulation/act/proposals.htm. Back
2
Standing Order No. 141(2). Back
3
Where a criterion specified in the Standing Order does not appear
in this Report, there are no matters which we wish to raise under
that heading. Back
4
in England and Wales: the Order would not apply to other parts
of the United Kingdom. Back
5
Explanatory memorandum, Ch. 3, p.10. Back
6
Explanatory memorandum, Chapter 4. Back
7
Article 3(1). Back
8
Explanatory memorandum, p.20. See also Annex G, which comprises
a draft outline of the proposed guidance. Back
9
Fourth Report, Session 2001-02 (HC 583). Back
10
Appendix 2, s.4. Back
11
Appendix 6. Back
12
Appendix 7. Back
13
See paras 31 and 33 below. Back
14
Explanatory memorandum, pp.19-20. Back
15
Appendix 1, para 3. Back
16
Appendix 2, para 3. Back
17
For further details, see chapter 6 of the explanatory memorandum. Back
18
See p.9 of the explanatory memorandum. Back
19
Further detail on each of the points below may be found in chapter
7 of the explanatory memorandum (pp.27-28). Back
20
In addition to those in current legislation left untouched. Back
21
For further detail on the provisions relating to renewal areas,
see chapter 8 of the explanatory memorandum. Back
22
References, here and below, are to the 1989 Act as it would be
amended by the Order. Back
23
Regulatory Reform Act 2001, s1(1)(b) and (c). Back
24
For an outline of the proposed guidance, see Annex G of the explanatory
memorandum. Back