House of Commons - Explanatory Note
The Housing Bill - continued          House of Commons

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Housing Health and Safety Rating System

365.     There will be limited effect on public service manpower. The proposed regime will, as now, be enforced by LHA environmental health officers, who will already be professionally qualified and trained in risk assessment procedures. The courts will continue to hear appeals arising from enforcement decisions. The criminal offences for non-compliance with the new kinds of enforcement action for which Part 1 provides are similar to those under the current provisions in the 1985 Act. It is not expected that the limited consequential amendments to the enforcement procedures will lead to a significant increase in appeals.

HMO licensing and selective licensing of landlords

366.     There will be a limited effect on public service manpower. In practice the extra staff costs should be met out of fee income.

Home information packs

367.     There will be little effect on public service manpower. The proposed new regulations will be enforced by local weights and measures authorities who will operate a penalty charge scheme. The average cost to individual local authorities is estimated at less than £10,000 (or about a half of one post). The cost of any additional workload for the Courts and Tribunals is likely to be negligible.

Right to Buy

368.     There will be little effect on public service manpower, as the administration of the scheme will not change significantly.

SUMMARY OF REGULATORY APPRAISAL

369.     Regulatory Impact Assessments have been carried out for each of the major elements of the draft Bill and are published alongside the Bill and explanatory notes.

Housing Health and Safety Rating System

370.     The proposed enforcement regime modernises and refocuses the regime set down in the 1985 Housing Act (as amended). It does not add significant new burdens to private sector or public sector landlords, or owner occupiers. The overall responsibilities of LHAs are unchanged.

HMO licensing and selective licensing of landlords

371.     The proposed licensing regimes should not add significant new burdens to private sector landlords. The main cost to private landlords will be the licence fee that will be subject to limits set by regulations under the Bill. Although mandatory HMO licensing and selective licensing will involve some new responsibilities for LHAs, in the main HMO licensing will have many features that are in line with the existing arrangements that many LHAs with significant numbers of HMOs already have for registering them.

Home information packs

372.     The proposals will put a new burden on those marketing residential property for sale. The main business sectors affected by this requirement would be estate agents, solicitors acting as estate agents, house builders and the surveying profession. There would also be consequential effects on mortgage lenders and conveyancers.

Right to Buy

373.     The proposals will limit the financial returns available to incentives companies that seek to exploit the rules. But they will have an insignificant impact on those firms - for example, advisers and lenders - that are operating within the spirit of the rules.

COMMENCEMENT

On Royal Assent

374.     Clauses 8, 143, 187, 199(2) to (5) and 201-203 will come into force on Royal Assent, as will any power conferred by the Bill to make orders or regulations.

375.     Clause 154 will also come into force on Royal Assent (but the rent to mortgage scheme which is terminated by that clause will only end 8 months afterwards).

Two months after Royal Assent

376.     The following clauses will come into force two months after Royal Assent as will provisions on documents (clauses 181-186), other supplementary provisions (188-190); and general interpretation provisions (196-198).

—     Clauses 147 to 153 and 158 to 164 that make changes to the right to buy scheme;

—     Clause 165 on succession between same sex partners;

—     Clause 166 on an additional power to give grants for social housing;

—     Clause 167 on the disabled facilities grant;

—     Clauses 171 and 172 on codes of practice and management regulations relating to HMOs;

—     Clauses 191 to 195 and Schedule 9 on the meaning of HMO.

By commencement order

377.     The following provisions will be brought into force by commencement order:

—     Part 1 - Housing Conditions (except clause 8 which comes into force on Royal Assent),

—     Part 2 - Licensing of HMOs;

—     Part 3 - Selective licensing of other residential accommodation;

—     Part 4 - Additional control provisions in relation to residential accommodation;

—     Part 5 - Home information packs (except clause 138 that provides for grants relating to home information packs which comes into force on Royal Assent);

—     Clause 63 - Removal of duty on LHAs to send annual reports to tenants;

—     Other provisions of Parts 6 and 7 which have not already been mentioned.

378.     The National Assembly for Wales may make a commencement order in respect of clause 169 and Schedule 8 (which relate to the Social Housing Ombudsman for Wales) and to bring other provisions (except Part 5 on home information packs) into force in relation to Wales. The Secretary of State may make a commencement order in respect of Part 5 in relation to England and Wales and to bring other provisions into force in relation to England.

EUROPEAN CONVENTION ON HUMAN RIGHTS

379.     Section 19 of the Human Rights Act 1998 ("the HRA") requires the appropriate national authority in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Deputy Prime Minister has made the following statement under section 19(1)(a) of that Act:

380.     In my view, the provisions of the Housing Bill are compatible with the Convention rights.

The Bill raises issues under Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) and Article 1 of the First Protocol of the Convention. These are considered in the following paragraphs in relation to each Part of the Bill. In addition to the considerations mentioned in those paragraphs, section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights. This will apply to functions exercisable by LHAs or the appropriate national authority, such as decisions to take enforcement action or to designate areas in which licensing is to apply or decisions to confirm or approve designations.

Part 1

381.     Enforcement action under Part 1 raises issues under Article 8 in respect of the right to respect for a person's home. The Government's view is that any interference with Article 8 rights is justifiable under Article 8.2 because the provisions of Part 1 will be in accordance with the law and necessary in a democratic society for the protection of health and of the rights and freedoms of others. Part 1 pursues the legitimate aim of protecting actual and potential occupiers of residential premises by providing powers to improve housing conditions. The powers are proportionate because they are aimed at identifying and targeting hazards which cause accidents and ill health and which have been properly assessed in accordance with an appropriate technical method.

382.     The enforcement provisions in Part 1 (including the amendments to Part 9 of the Housing Act 1985) raise issues under Article 1 of the First Protocol. In the Government's view, any deprivation or interference arising from HHSRS enforcement action is justified as being in the general interest and proportionate in that a fair balance is struck between the interests of occupiers and the rights of property owners. Moreover provisions for compensation in respect of demolition or clearance which are currently in the Housing Act 1985 will continue to apply.

383.     The entitlement under Article 6.1 to the determination of civil rights by an independent and impartial tribunal may apply to administrative decisions taken by LHAs under Part 1. The Government takes the view that Part 1 is compatible with that article because provision is made for a full right of appeal to a county court, by way of rehearing, against an authority's decision to take enforcement action.

Parts 2 and 3

384.     Parts 2 and 3 of the Bill raise similar human rights issues and will be considered together. In the Government's view, the requirement to obtain a licence under Part 2 or Part 3 is a control on the use of property for the purposes of Article 1 of the First Protocol and not a deprivation of property. In the case of Part 2, this control is in accordance with the general interest as it enables regulation of the management, use and occupation of premises on which there is a high risk of harm to occupants or where other particular problems have been identified by an LHA. In the case of Part 3, licensing will only be required in designated areas which fulfil specific conditions. In those areas the control is in the general interest of dealing with the social or economic effects of problems such as low housing demand or anti-social behaviour.

385.     Safeguards in Parts 2 and 3 aim to strike a fair balance between the different interests involved. In connection with the designation of areas, these include requirements for consultation; the consideration of alternative courses of action and the fact that any designation must be confirmed, or approved, by the appropriate national authority. The criteria for the grant, refusal or revocation of a licence required by Part 2 or 3 are set out in each Part.

386.     Decisions of an LHA relating to the grant, refusal, variation or revocation of a licence under Part 2 or 3 raise issues under Article 6.1. In the Government's view, the provisions are compatible as they provide a right of appeal to a county court, by way of a re-hearing, against such decisions. Judicial review will be available as remedy in respect of decisions to designate areas of additional HMO licensing or selective landlord licensing.

Part 4

387.     The making of a management order under Part 4 raises issues under Article 1 of the First Protocol. In the Government's view, any interference is justified as being in the general interest because a management order will be made where the management of a rented property has failed, and intervention by the LHA is required to protect the health, safety and welfare of occupiers or people living near that property. It is considered that the provisions of Part 4, as a whole, are proportionate and strike a fair balance between the interests of the property owner and those for whose benefit or protection a management order may be made. The powers of an LHA to deal with a property under a management order are strictly controlled. An owner, in addition to being able to dispose of the property while the management order is in force, is entitled to receive all rent after the payment of the expenses of running the property. This is broadly equivalent to the income that he would have received if he had been managing the property effectively himself. Moreover, he is entitled to ask for the management order to be revoked at any time and to appeal against an adverse decision.

388.     There are appeal rights in relation to an LHA's decisions under Part 4 which mirror those in Parts 2 and 3. In the Government's view, these ensure compliance with Article 6.1.

Part 5

389.     The new requirements on a person marketing residential property to have, and provide a copy on demand of, a home information pack raise issues under Article 1 of the First Protocol. In the Government's view, the provisions are necessary to control the use of property in accordance with the general interest. They pursue the legitimate aims of minimising costs wasted in housing transaction, increasing confidence in the housing market and improving the general operation of the housing market. They are proportionate and strike a fair balance between the interests of sellers and buyers and the general public interest.

390.     The new requirements also raise issues under Article 8 in respect of the right to respect for private life. Part 5, however, includes safeguards such as the ability of a person marketing residential property to refuse to provide a copy of the pack in cases where he believes the person demanding to see it is not a genuine buyer or is not a person to whom the seller is likely to be prepared to sell the property. There is power to make regulations restricting the disclosure or use of information in packs. In the Government's view, no incompatibility with Article 8 arises.

Part 6

391.     The provisions of Chapter 1 of Part 6 enabling the extension of the period of an introductory tenancy, in the light of recent judgements of the House of Lords, are considered to be compatible with Articles 6 and 8.

392.     The provisions of Chapter 1 of Part 6 in respect of the right to buy raise issues under Article 1 of the First Protocol. In the Government's view, they strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. They aim to serve the legitimate interest of preventing abuses of the right to buy. As regards, in particular, the amendments made by clause 143, there is a strong public interest in regeneration projects being able to proceed without landlords being required to use public money to compensate tenants who have exercised the right to buy knowing that their home is to be demolished. The amendments include procedures and safeguards, which aim to strike a fair balance between the general and the individual interest. Moreover the tenant of a property which is to be demolished will have the right to be re-housed.

393.     Clause 160 (which extends rights of succession to tenancies to same sex partners) is designed to remove doubts about the compliance of the succession regimes with the Convention rights in the light of recent case law.

Part 7

394.     The provisions of Part 7 relating to powers to require the giving of information to LHAs and powers of entry raise issues under Article 8. Any potential interference will be accordance with the law to enable LHAs to carry out their enforcement functions under other Parts of the Bill. This is a legitimate purpose as the aim is to promote the economic wellbeing of the country and to protect the rights and freedoms of others.

 
 
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Prepared: 8 December 2003