Select Committee on Regulatory Reform Seventh Report


Removal of burdens in respect of England

18. The Department considers that the section 129 requirement imposes the following three burdens:

    (a)  a burden "affecting local [housing] authorities"

    (b)  a burden on the Secretary of State, because he or she is required to consider applications from local housing authorities to have their schemes approved, and

    (c)  a burden on government regional offices in assessing these applications; currently, government departments take around ten person days a year to assess these applications.

The Department considers that the proposal would remove these three burdens, and would not impose any new burden.

19. The Department suggests that the removal of burden (a) would benefit local housing authorities by:

  • saving authorities the work involved in applying for the Secretary of State's approval of a scheme

  • removing the delays involved in waiting for the Secretary of State's approval of a scheme, particularly in relation to minor revisions of scheme conditions, and

  • allowing authorities freedom to determine the conditions that will apply to their schemes.

20. From the information provided by the Department, we infer that the nature of the burden imposed by section 129 is that, if a local housing authority wishes to implement a scheme, it must first apply to the Secretary of State for him or her to approve the scheme. We consider that this is a burden imposed on all local housing authorities, not just those authorities that in fact choose to operate a scheme. Section 129 therefore imposes a requirement on local housing authorities that constitutes a burden for the purposes of section 2(1) of the Regulatory Reform Act. Clearly, the proposal would remove this burden by removing the section 129 requirement. We are therefore satisfied that the proposal removes a burden imposed on local housing authorities in England.

Re-enacting provisions that impose burdens in respect of Wales

21. In its explanatory statement, the Department argued that "the entire order is made only with a view to the removal of the requirement of approval in England, and not also with a view to re-enactment of the requirement in Wales."[12] We considered that the Department could not sustain this argument: as currently drafted, the proposal would clearly re-enact the section 129 requirement in respect of Wales, thus re-enacting a provision which imposes a burden on local housing authorities. Consequently, if the proposal were to proceed as currently drafted, it would need to satisfy section 1(1)(b) of the Regulatory Reform Act. Section 1(1)(b) requires that a provision having the effect of imposing a burden may be re-enacted only where the burden is proportionate to the benefit expected to result from the re-enactment.

22. In the event that we did consider that the proposal would re-enact a provision, the Department argued that the burden imposed by the re-enacted provision would be proportionate to the benefit which would be expected to result from its re-enactment. The Department based its assertion that the re-enacted burden would be proportionate on the following assessment:

The burden is very slight as the schemes are not used much and the Secretary of State considers that the slight burden is proportionate to the benefit of approval in the circumstances applicable in Wales.[13]

23. We were not convinced by this argument. The burden imposed by section 129 affects each individual local housing authority. It is therefore a burden imposed on every local housing authority in Wales, not just the one authority that is in fact choosing to operate a scheme, because any local housing authority may choose to operate a scheme. Although only one local housing authority in Wales has chosen to operate a scheme, the burden on local housing authorities is no more "slight" simply because only one such authority currently operates a scheme.

24. Consequently, on the basis of the explanatory statement, we were not convinced that the Department was justified in seeking to distinguish the "circumstances applicable in Wales" from those applicable in England. The same burden applies in both England and Wales, regardless of how many local housing authorities choose to take up the option of operating a scheme. The Department had therefore not shown what benefit would result from the re-enactment of section 129 with respect to Wales, nor whether this benefit would be proportionate to the burden arising from the re-enacted provision.

25. We therefore asked the Department to comment on whether, if section 129 were to be re-enacted in respect of Wales, the imposition of the burden would be proportionate to the benefit which would be expected to result from its re-enactment. The Department responded by announcing its intention to revise the proposed draft order:

Given that housing functions have been devolved to the National Assembly for Wales, it is difficult to see how the Secretary of State can be sufficiently informed to take a view on the effect of re-imposing the burden (and whether or not the burden would be proportionate to the benefit) without requesting detailed evidence from the National Assembly. In the circumstances it has therefore been decided to re-draft the order so as to give effect to the proposal on which consultation took place, while avoiding the making of a provision which will in the opinion of the Committee involve the exercise of the power in section 1(1)(b). A copy of the re-drafted order is attached. The Department apologises for any lack of clarity caused by its failure to be more precise in the [explanatory statement] as to its view of the law.[14]

26. The revisions to the proposed draft order put forward by the Department do not change the policy underlying the order. The revisions are only drafting changes, and would mean that section 129 of the 1988 Act would continue to apply to Wales in the same way in which it currently does. Consequently, if the draft order is revised in the manner suggested by the Department, it will no longer attract the test set out in section 1(1)(b) of the Regulatory Reform Act.

27. We are therefore satisfied that, if the proposed draft order is revised in the way indicated by the Department, the proposal will no longer re-enact a provision having the effect of imposing a burden on local housing authorities in Wales. The revised draft order would not affect the application of section 129 of the 1988 Act to Wales and the section 1(1)(b) test would no longer be applicable.

28. However, we are concerned by the Department's statement that "it is difficult to see how the Secretary of State can be sufficiently informed to take a view on the effect of re-imposing the burden (and whether or not the burden would be proportionate to the benefit) without requesting detailed evidence from the National Assembly." This statement contradicts the assertion in the explanatory statement that, if the Secretary of State is demonstrated to be wrong in his assessment that the proposal would not re-enact the section 129 requirement in relation to Wales, then he "considers that the burden of approval in Wales is proportionate to the benefit which is expected to result from re-enactment, in relation to Wales."[15] We fail to understand how the Secretary of State can have initially asserted that the section 1(1)(b) test is satisfied but then, upon subsequent questioning, state that he is not sufficiently well-informed to assess whether the section 1(1)(b) test is satisfied. We expect both the Department and the Secretary of State to ensure, in respect of any future proposals, that any assertion that a particular test of the Regulatory Reform Act is satisfied is based on adequate and convincing evidence.

Maintenance of necessary protection

29. The Department considers that the proposal would not lessen any existing protection. It points to a number of existing general constraints on local housing authorities which it considers will ensure necessary protections are maintained. These constraints would require a local housing authority to:

  • have sufficiently robust systems in place to detect fraud

  • exercise a duty of fiduciary care towards its council taxpayers by taking their interests into account when deciding whether to incur expenditure

  • take account of inspection reports by the Audit Commission and adhere to the principles of Best Value, by monitoring the operation of a scheme to ensure it continues to deliver good value for money.

30. Currently, local housing authorities operating schemes are required to carry out means testing of applicants' income and savings to ensure that grants are not awarded to tenants who can afford to buy without assistance and that applicants have the resource to sustain home ownership once they have moved into their new home. In the consultation document on the proposal, the Department states that, if the proposed draft order is made, it expects local housing authorities to continue to carry out means testing.[16] We asked the Department whether it would consider it appropriate for a local housing authority not to continue carrying out means testing and, if not, to tell us what sanctions there would be against an authority which did not carry out means testing.

31. The Department told us that, if the proposed draft order is made, local housing authorities would, as now, need to be satisfied that any grants made under a cash incentive scheme are appropriate and represent good value for money. This should involve an authority ensuring that an applicant can afford to sustain home ownership and that he or she does not have sufficient resources to purchase a property on the open market without the grant. The Department states that it would not expect any authority to run a scheme without means testing, but that there would no specific sanction if an authority did not carry out means testing. However, an authority would continue to be obliged to act in accordance with general administrative law principles on reasonableness, including those relating to an authority's fiduciary duty, and with the need to satisfy auditors about financial prudence and propriety.

32. Under section 129, the information required in a scheme is specified in guidance notes issued by the Department (as discussed in paragraph 8 above). The removal of the section 129 requirement would give authorities freedom to determine the conditions of their schemes, within the limits of the protections listed above. The Department notes that a number of the consultation responses from local housing authorities commented that a "good practice" guide would be welcome. It agrees that this would be a good idea and is planning to issue non-statutory guidance to local housing authorities in February 2003. This guidance will set out the range of issues to be addressed in deciding whether to run a scheme and in establishing a scheme framework.

33. We also asked the Department whether it intends to undertake any monitoring of cash incentive schemes to establish whether local housing authorities are following good practice. The Department told us that, if the proposed draft order is made, it intends to carry out an analysis of its impact over the next 18 months, although there are as yet no detailed plans in place. In addition to this, information on the number of cash incentive scheme grants, the total expenditure on grants and the average value of a grant will continue to be available from the regular returns that authorities provide on housing capital expenditure. The Department states that it is keen to promote greater use of cash incentive schemes by local housing authorities in high demand areas and that this will necessarily involve discussions between government regional offices and authorities about the operation and structure of schemes.

34. We are therefore satisfied that the proposal continues the necessary protection provided by the 1988 Act. We trust that, over the next 18 months, the Department will carry out its intended analysis of the impact of the proposed draft order, and we ask the Department to inform us of the results of any such analysis.

Adequate consultation

35. We are satisfied that the proposal has been the subject of an adequate consultation process and that the Department has taken appropriate account of the consultation responses. The Department published a consultation document on the proposal on 16 August 2002. The document was sent to all local authorities in England,[17] to regional assemblies and to 26 other interested organisations; it was also sent to the National Assembly for Wales and to the Wales Office. The document was made available on two government web sites. Those consulted were given nine weeks to respond.

36. Responses were received from 20 local authorities and six representative organisations.[18] The responses were strongly supportive of the proposal; a number of local housing authorities indicated that the removal of the section 129 requirement would allow them to operate schemes more effectively.

Preventing exercise of right or freedom

37. We are satisfied that the proposal would not prevent any person from continuing to exercise any right or freedom that he or she might reasonably expect to continue to exercise. As the Department states, the decision to run a scheme is a matter for individual local housing authorities to decide in the light of local circumstances; tenants have no specific right to a grant under such a scheme.

Costs and benefits

38. In relation to estimated increases or reductions in costs, the Department considers that savings would result from staff time freed by removing the section 129 requirement. The Department states that government regional offices would save around ten person days a year. Initially, it was not clear whether the Department considered that the proposal would also result in savings in local housing authorities' staff time. In the consultation document, the Department states that the proposal would benefit local housing authorities from an administrative point of view, as authorities would no longer need to devote staff time and other resources to applications for approval of schemes.[19] By contrast, in the explanatory statement, the Department describes such savings as "negligible", because authorities choosing to operate schemes would still need to formulate and administer them.[20]

39. We sought clarification from the Department about whether it considers that the proposal would result in savings in local housing authorities' staff time, given these apparently contradictory statements. The Department explained that the description of such savings as "negligible", in the explanatory statement, reflects the Department's current position. The Department re-assessed the estimate it had made in the consultation document as a consequence of additional information provided by some local housing authorities in the consultation responses. Authorities' staff time would still be taken up in formulating and operating schemes.

40. We note that the Department also identifies likely reductions in costs resulting from local housing authorities' ability to make more effective use of schemes, because of the increased flexibility that would result from the proposal. The Department states that generating extra social tenancies through cash incentive schemes is substantially cheaper than providing new housing through registered social landlords. In London and south-east England, where demand for housing is greatest, tenancies are being generated through cash incentive schemes with grants of up to £30,000, whereas the cost of providing new social housing is around £100,000 per property. The Department states that it cannot quantify how many more council houses would be freed up for those in housing need if the proposed draft order were to be made.

41. In relation to other benefits, the Department considers that the proposal would remove delays caused to local housing authorities in the course of seeking the Secretary of State's approval for schemes.

42. We are therefore satisfied that the proposal has been the subject of, and takes appropriate account of, estimates of increases or reductions in costs or other benefits which may result from its implementation.

Conclusion

43. On the evidence currently before us,[21] we conclude that a draft order revised in the manner discussed in paragraph 26 above should be laid before the House.


12   Explanatory statement, para 7.1 Back

13   Explanatory statement, para 7.1 Back

14   Appendix, para A3 Back

15   Explanatory statement, para 7.1 Back

16   Explanatory statement, Appendix B, para 3.5 Back

17   See the explanatory statement, Annex A of Appendix B, for a complete list of consultees. Back

18   See the explanatory statement, Appendix D, for a complete list of respondents to the consultation document. Back

19   Explanatory statement, Appendix B, para 5.1 Back

20   Explanatory statement, para 12.1 Back

21   See paragraph 1 above. Back


 
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