OPPOSED BILL COMMITTEE

London Local Authorities Bill

Tuesday 29th March 2011

PANEL:

Brandon Lewis MP (Chair)

Tracy Crouch MP

Nic Dakin MP

Ian Mearns MP

Annette Toft (Clerk of the Committee)

IN ATTENDANCE:

Promoters of the Bill

Nathalie Lieven QC (Counsel)

Alastair Lewis (Agent for the Bill)

David Princep (Former Housing Officer, Environmental Health Consultant)

Kevin Thompson (Interim Head of Service, Residential Operations, Royal Borough of Kensington & Chelsea)

Additional Attendees:

Sally Randall (Deputy Director for Private Housing Management, Condition and Adaption, Department for Communities and Local Government)

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Transcribed from the Official Tape Recording

Ubiqus

Clifford’s Inn, Fetter Lane, London EC4A 1LD

Tel: +44 (0)20 7269 0370

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ORAL EVIDENCE VOLUME III

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CHAIR: We will start back with questions from Committee members; Tracy Crouch?

TRACY CROUCH MP: Thank you very much. You touched on it in the earlier questioning, but obviously HMOs exist across the country and in all major towns and cities across the UK, particularly in deprived areas. I have, I think, lots of HMOs in Chatham. So why should these regulations just apply to London authorities?

KEVIN THOMPSON: Well I think we need them in London for the reasons we did touch on earlier: we have more HMOs as part of our stock, and they are bigger, in higher demand, and do present a high risk. These proposals, I think, would benefit the whole of the country, and I think London would be a good testing ground for them, because if it could work for the highest risk, and most difficult to deal with HMOs, then clearly it would work for the others equally well.

TRACY CROUCH MP: But out of all the HMOs that you have, what percentage would you say are the highest risk?

KEVIN THOMPSON: Speaking for the borough that I’m currently in, in Kensington and Chelsea, virtually all of our HMOs are mandatory licensable HMOs, the large ones. They are four and five storeys generally, and are considered high risk. So in Kensington and Chelsea potentially more than 90% I would say.

TRACY CROUCH MP: Right, okay. Can I just ask you about a process thing, which is, you were saying earlier that, instead of criminal prosecutions, these regulations would allow local authorities to effectively pay for the repairs. Is that right?

KEVIN THOMPSON: I’m sorry; I didn’t understand that question.

TRACY CROUCH MP: The process that will be brought in under the new legislation will mean that instead of going to criminal prosecution, you will effectively bring in a management notice, which will basically ask the landlord to sort out the repairs, otherwise local authorities will pay for the repairs?

KEVIN THOMPSON: Yes.

TRACY CROUCH MP: If they don’t pay the bill, they will then go to prosecution?

KEVIN THOMPSON: Not necessarily, no.

TRACY CROUCH MP: Right.

KEVIN THOMPSON: The works in default would be carried out in their default, following service of a notice which specified that it was to be carried out. The cost for that would be registered as a local land charge alongside with an administrative fee from the local authority, and that would remain as a charge against the property title. The authority can issue a demand for payment, and if payment is not forthcoming there are powers for them to enforce that debt, to reclaim that debt, right up to powers of sale of the actual property. Generally for small debts that would not be pursued, but for large debts it has been.

TRACY CROUCH MP: So the cost would effectively therefore be on the local authority?

KEVIN THOMPSON: The cost would be registered to charge against the property, and would accrue interest until such time as the property was disposed of or the debt was settled.

TRACY CROUCH MP: But the initial cost would still be borne by the local authority?

KEVIN THOMPSON: Yes.

TRACY CROUCH MP: And at a time where local authorities are facing financial difficulties, will local authorities be able to actually afford to pay these upfront costs until they are actually paid back in whatever process they would be paid back?

KEVIN THOMPSON: I can only speak for my own authority. We do have budget provision for works in default. It never historically has been fully used in any year that I’m aware of. The actual potential carrying out of works in default tends to be enough to get the works carried out by the landlord. As with prosecution, it’s only in very rare cases, extreme cases that we actually have to carry out large-scale works in defaults. We do so for emergency works that require a really quick remedy, such as a broken drain or a dangerous gas appliance, that kind of thing, but for expensive larger scale works in default it’s quite rare.

TRACY CROUCH MP: I’m failing to really fully understand what it is that this legislation would give you that you don’t already have. So, for example, if I can just give a hypothetical example, if there’s an HMO in my constituency – there obviously isn’t in London, but for the purpose of the example – that, for example, doesn’t have its emergency lighting, for example. At the moment are you saying that the local authority has no power to ensure that that emergency lighting is fixed by the management company?

KEVIN THOMPSON: The management regulations would require the emergency lighting to be fixed; therefore, if were to use the management regulations, the only sanction we currently have is prosecution, which is inappropriate.

TRACY CROUCH MP: Why would it be inappropriate?

KEVIN THOMPSON: It would be inappropriate in that it is such a heavy-handed sanction to require what is quite a simple remedy. If we don’t have management regulations then we have to rely on HHSRS or licensing conditions. Licensing conditions, again, are prosecution – it has a rating system. We can use that, but it is very bureaucratic, very time consuming, and we would like a simpler resolution to what is a very simple problem: i.e. get the engineer to fix the lighting.

TRACY CROUCH MP: But presumably a prosecution is perhaps more of a deterrent than a fine or cost, because the prosecution will, as you said earlier in your evidence, mean that there is then a criminal record.

KEVIN THOMPSON: Yes.

TRACY CROUCH MP: Whereas, at the moment, if we go down this route there won’t be a criminal record until much further down the route. Therefore, it is more of an incentive under the current regulations for a management company to sort out the problem.

KEVIN THOMPSON: Well what we’re saying is defects in properties will occur, and where they are easily remedied, quickly remedied, we would rather have a simple way of achieving that aim, rather than going down the full-blown prosecution route, and some of the reasons for that I did touch on earlier. Firstly, it’s very time consuming and resource intensive for local authorities. The timescale that you have to go through to get to the end point for a prosecution is lengthy. It’s burdensome on the landlord, it takes up court time, it criminalises a landlord when really this wouldn’t warrant a criminal record for a simple defect, and lastly, it doesn’t remedy the defect. At the end of the process, the emergency lighting still may not be working, and we’re back to square one, having devoted all those resources to the question.

CHAIR: Can I just ask, just following on the same question, at the moment you have to go through a legal process, and you’re saying it’s bureaucratic and obviously it’s longwinded, but if you were going through the processes under this Bill, the very people who are in breach in the first place, particularly if it’s a serious breach, are likely to be the ones who are least likely to then pay the bill once the authorities fix it, and take on that upfront cost. And therefore you would be back into the bureaucratic process of having to go through the court proceedings to recoup that money, or put a charge on the property, which you might then get back some way along way down the line. How is that less bureaucratic? And also, in the same point, at a time where there is pressure on budgets, I would have thought the authority would not be looking to want to keep a huge reserve for that kind of upfront payment, and therefore there is going to be a potential long-term cost there before that money is recouped.

KEVIN THOMPSON: Yes. I don’t think local authorities do keep a huge reserve for these upfront payments. Works in default is very rare. Usually for small scale works the demand is settled by the landlord, should it get that far down the line; for larger costs, authorities do have quite robust debt recovery processes. Certainly in my borough we have been very efficient in that we have a very low level of debt. I couldn’t tell you what the exact figure is, but it’s very low.

CHAIR: Okay. And you made a comment, and obviously this is around making this provisionally for London – and I have a constituency with a number of HMOs as well – is your case for London being different pretty much based on it’s got more of them than anywhere else?

KEVIN THOMPSON: That’s one of the criteria; if we have more of them then in order to deal with them we need more resources, and if our resources are tied up in a bureaucratic process that doesn’t necessarily achieve the end result, that can’t be a satisfactory situation. If we can have a simpler, lighter touch, effective means of regulation, then we can devote those resources to the wider range of HMOs that require a heavier intervention. If I may say so, what we’re not saying here is that we shy away from prosecution or discard it as an effective regulatory tool; for persistent offenders, wilful offenders, we will take prosecutions, and we do. That is not an issue. What we are saying here is that this sector of private-sector housing is a high-risk sector that has vulnerable tenants; it does not have, in the main, a higher proportion of professional, well-intentioned landlords, in all cases, and we have a high regulatory demand. So we want some really simple, light-touch, effective regulation to remedy deficiencies without going down a bureaucratic or criminal route.

CHAIR: I understand that. The problem is I’m sure there are a lot more authorities around the country that would have the same view of the HMOs they’ve got, and this is the issue between this just being for London. My last thing, and I just want to ask some questions as well, if this is important is there any reason why this has not come forward as an amendment in the Localism Bill, and particularly the London Partner Housing part of that that’s been going through the House over the last few months?

KEVIN THOMPSON: I couldn’t comment on that, Chairman. I’ve not been involved.

CHAIR: Mr Dakin.

NIC DAKIN MP: Thank you. How often would you have used this power that you’re seeking in this Bill if you’d got it during the last year?

KEVIN THOMPSON: If we go back a number of years, when we did have this power it was routine. It was mainstream and routine; prosecution was the exception.

NIC DAKIN MP: Right, so how often would you be likely to have used it in a year, for example? I understand routine, but it doesn’t give me a sense of volume.

KEVIN THOMPSON: No, okay. Well, if I can speak for my borough, we’re a small geographical borough, but very densely populated. We think we have 309, currently, HMOs that should be licensed. We’ve licensed 190. We’re working through the others; it’s a resource-intensive process, but of the 190 licences that we’ve issued, a majority of those would have had management regulation notices attached to those licences had we had them available. What we are tending to do is try to remedy the management defects in an informal way, which would, in effect, mirror the management notice if we had it. Obviously it isn’t in existence; it’s an informal process. If that doesn’t work we then have to work back to the more bureaucratic process.

NIC DAKIN MP: That’s what I thought in a sense: why can’t you just send them a letter saying, "This is what you need to do otherwise we’ll take you to the courts."

KEVIN THOMPSON: We do, Sir, we do.

NIC DAKIN MP: So you’re informally following this sort of structure without statutory framework?

KEVIN THOMPSON: Yes we do.

NIC DAKIN MP: So why do you need a statutory framework? What will the difference be?

KEVIN THOMPSON: Following an informal notification process on management defects is pretty much the same process we would follow in serving a management notice were it on the statute books. The process is the same, the resource implications are the same, there are a few front-end references that we would need to do, like robust ownership checks, if we would serve a statutory notice, but the process is the same. What it would do if this was a formal notice procedure would strengthen up our current procedures and put them on a statutory footing. If the management defects were not then remedied, we have the sanction that we’ve talked about – works in default. The current informal process that we’re following has no sanction; at the end of the day it operates on goodwill, and advice. And if those defects are not remedied in the informal process, then we have to go back right to square one, and we would then have to either consider a prosecution, which in most cases might be heavy handed, or a hazard-rating process, which is, again, bureaucratic.

Some management defects can’t be dealt with under the hazard rating system – things such as basic cleaning of common facilities. We commonly come across shared amenities – and these are toilets, bathrooms, quite personal areas of people’s home life – which are simply not cleaned, and these areas are shared with other households, up to five if they’re in compliance, often households who these people don’t know. So you’re sharing your toilet, your bathroom, or possibly your kitchen with strangers in a property. If the landlord or his or her managing agent do not comply with the management regulations and keep those facilities effectively cleaned, they quickly descend into quite a disgusting state. Unless they go completely to the far end of the spectrum, it’s very difficult to pin that down to a category one, or even a high category two health outcome, under the hazard rating system. I mean, they are awful to live with, disgusting to look at, and I wouldn’t expect anybody in this room to want to use facilities like that on a day-to-day basis, shared with strangers in their own home. But it’s difficult for us to deal with it under HHSRS, because the clear health outcome isn’t always able to be demonstrated unless it’s an extreme case.

A management notice is what it is: it’s basic management to ensure decent living conditions for a landlord’s tenants, so if properties are not effectively cleaned, the toilets, facilities, kitchens descend into a disgusting state, this notice could quickly remedy that.

NIC DAKIN MP: So you’ve got about 190 properties that would probably be operating under that notice at the moment if you had that power?

KEVIN THOMPSON: Yes.

NIC DAKIN MP: Towards that, 150, 190.

KEVIN THOMKPSON: That’s just the licensable HMOs. Then there are the non-licensable ones too.

NIC DAKIN MP: But for the majority of those, the process you are doing would sort it out before you had to actually interfere. Is that what you’re saying?

KEVIN THOMPSON: I’m sorry; I’m not following you.

NIC DAKIN MP: I’m just trying to get the difference between how the formalisation of it helps, but I think I’ve probably said enough on that. Mainly your argument is to assist vulnerable people by acting quickly – that’s the main reason you want this power?

KEVIN THOMPSON: Yes, and to enable us to redirect our decreasing resources to areas of greater risk, and to achieve a greater number of outcomes, rather than to devote expensive staff to a bureaucratic and longwinded procedure, which often doesn’t achieve the outcome in terms of prosecutions.

NIC DAKIN MP: Thank you.

CHAIR: Ian Mearns.

IAN MEARNS MP: A number of questions, Chair, so apologies. Earlier on Mr Thompson you said that 37% of the stock in London, which is the highest proportion of anywhere in the country, were an HMO of one sort or another.

KEVIN THOMPSON: Yes.

IAN MEARNS MP: But you’ve got quite clear criteria in terms of the five occupiers, the two households, three storeys or more, about which ones need to be licensed?

KEVIN THOMPSON: Yes.

IAN MEARNS MP: So what proportion of properties across London would come within that definition – the tighter definition that would require licensing?

KEVIN THOMPSON: I haven’t got those statistics for you, I’m afraid. It gets even more complicated in that some boroughs have what is called additional licensing, where they have a large number of HMOs that are not within the mandatory definition for licensing, but they know they present a risk, so they have adopted an additional scheme, and they are also licensed. So the numbers of licensable HMOs is a bit of a grey area. I’m sure the figures are out there somewhere, and perhaps colleagues at the DCLG could help us with that, because they do collect that data in some form, and I think future inquiries could get hold of that data.

IAN MEARNS MP: I’m similar to other Members; I live in and represent a constituency which has quite a number of HMOs, but more in the town centre, urban setting, than coastal of that nature. I’ve got a lot of experience of dealing with the problems of HMOs. You’ve been quite scathing in the generality about HMO landlords. There will be exceptions, but by and large they don’t seem to be a particularly loveable bunch. Would that be right?

KEVIN THOMPSON: I wouldn’t like to couch it in those terms. There’s a wide spectrum of private-sector landlords. We know that. The properties that we’re looking at here, high-risk HMOs, tend to be at the lower end of the scale. There are some very good ones, and I could take you to some not far from here that are very well managed, and we don’t need to consider those, because these provisions won’t be aimed at them. They’re licensed, they’re well managed, and that’s fine. What we’re trying to do is home in on the bottom end of that market, which really does provide high-risk accommodation to vulnerable tenants who have no other real recourse, by the nature of who they are.

IAN MEARNS MP: Would I be right in my assertion that Members of Parliament should have a particular interest in the management of HMOs, because it is Parliament and the Exchequer which pays the rent for an awful lot of them through the housing benefit system? Would that be correct?

KEVIN THOMPSON: I couldn’t disagree with that.

IAN MEARNS MP: What’s the typical rent for a bedsit in a typical HMO in your borough?

KEVIN THOMPSON: With your permission I’ve got that somewhere buried in the paperwork – bear with me. I have it somewhere.

IAN MEARNS MP: Do you want to come back to that, if you can find that later, Mr Thompson?

NATHALIE LIEVEN QC: It’s paragraph 9.3 in Mr Thompson’s notes.

KEVIN THOMPSON: Thank you. Yes, the JLA did a survey across London. The median rent for bedsit accommodation is £92 per week; for studio flats £150 per week.

IAN MEARNS MP: Right. You mentioned earlier on one with 44 or 45 separate lettings?

KEVIN THOMPSON: Yes.

IAN MEARNS MP: And would that be a typical rent for those 45 or 44 separate lettings?

KEVIN THOMPSON: That wouldn’t, Sir, because this is a Greater London median. I just happen to be working the borough in the country which has the highest rents and highest property values in the UK, the Royal Borough of Kensington and Chelsea, and I could say that you could double those figures and it wouldn’t be too far wrong.

IAN MEARNS MP: I mean, if I said that that property was getting about half a million pounds per year from housing benefit, that wouldn’t be an exaggeration?

KEVIN THOMPSON: Well, those figures on the Greater London median, grossed up, bring in £95,680 per year, so if we were to double that for Kensington and Chelsea and some other central areas, I’m not good at maths, but it’s a lot of money.

IAN MEARNS MP: £200,000 – okay. Now, would I be right in suggesting that the sort of mechanism that you’re trying to establish through these provisions would be similar to the provisions that are available through the Town and Country Planning Act section 215, section 216, where a property is having a detrimental impact on the amenity of properties adjoining, and so you serve a notice on it to improve, and if they don’t improve you can take a whole range of other powers against the defaulter. Is that right? Is it similar to that?

KEVIN THOMPSON: Yes, broadly similar. We’re not asking for a broad range of further powers, simply the power to remedy the defect and recharge the cost under this notice, so just a single sanction.

IAN MEARNS MP: In answer to my honourable friend from Scunthorpe’s questions about trying to remedy the problems in an informal way, in your experience, is it that landlords comply, but after a prolonged period of metaphorically kicking and screaming? Would you say it like that?

KEVIN THOMPSON: Some do; again, it’s a broad spectrum. Sometimes, and very often, we simply need to write a letter to a landlord and the problem is dealt with; that’s the ideal scenario. Again, we don’t need to consider any of this, but the picture you paint is also very common, and some simply don’t respond at all to the informal action, so we have to resort to formal action.

IAN MEARNS MP: Okay. Thank you very much indeed.

CHAIR: I’d like just to follow up with a question from comments by colleagues. From what you’re saying, if I understand correctly, the landlords who are most likely to transgress, and have properties that you would want to deal with, because they’re in the poorest state, they are likely to be the ones that aren’t conforming to requirements, would ignore informal letters, and carry on doing their own thing. If you had the management powers, is it not fair to assume that they are potentially the same people who you would end up having to do the work for, charge them, but they would then not pay it anyway, so you wouldn’t be any further on in dealing with them other than now the council has got the upfront cost of fixing the problem, because they are least likely to play their part of the game, as it were?

KEVIN THOMPSON: They are the most likely not to comply. We would carry out the works and register the charge, and it would accrue interest, and we would pursue that debt in accordance with the council’s procedures; they vary from authority to authority. If they persistently and wilfully transgress following an action such as we’re proposing, then we still have the right to prosecution, and we would pursue it. This quick, light-touch regulation we’re proposing is not going to be appropriate for the very bottom rung of the landlord ladder, those who basically are seeking to avoid regulation and circumvent the law. We have a hardcore of those, and, if they are persistent and wilful offenders, we will prosecute, and we do, and we will continue to. This is for the middle ground.

CHAIR: Okay. Mr Thompson, thank you.

IAN MEARNS MP: Just for the record, in terms of the figures I was asking about before, the typical rent in the 45-unit property, if Kensington and Chelsea is twice the London average –

KEVIN THOMPSON: In some cases more.

IAN MEARNS MP: – would come to about £450,000 a year. I think that’s of interest, Sir.

CHAIR: Absolutely. Okay. I think we are going to ask Sally Randall if you can swap places.

NATHALIE LIEVEN QC: Just before Ms Randall speaks, Sir, it just might be helpful, because I haven’t taken you to this, to refer you to Schedule 2 of the Act, which is where the power to take action arises, and part three of that schedule deals with recovery of certain expenses, and that’s where the power to put on a local land charge arises. So that’s the enforcement provisions that Mr Thompson was referring to. And if I can just say, the process for putting on a local land charge is a pretty straightforward one, and then I suspect the genuine financial effect is that it makes it very difficult for the landlord to raise a mortgage on the property, so that is the enforcement route in there.

CHAIR: Thank you Mr Thompson. As a matter of procedure – Ms Randall, if you stay there, unless you want to carry on sitting there, but no one has taken that option yet today – just as a matter of procedure for members of Committee and everybody else as well, Ms Randall is a civil servant at the Department for Communities and Local Government, and therefore is here to explain the Government’s position, but is not here to defend it or quiz on its behalf either. So it’s slightly different in that sense, and hence she’s not in the inquisitional chair. Ms Randall if you’d like to make a submission on behalf of DCLG.

SALLY RANDALL: Thank you. Before talking about specifically management notices, it might be helpful if I set out the Government’s overall approach, which is also relevant to consideration of what we’re coming on to in part five. The Government at the moment has an overall objective to minimise new regulatory burdens, sanctions, or powers of entry, particularly as those apply to smaller businesses, and the vast majority of landlords are smaller businesses, and would meet the definition of micro-businesses under the current guidelines. Also looking specifically at the private rented sector, the Government has taken an overall view that the current framework, including the Housing Act 2004, which is a significant part of the current regulatory landscape, strikes basically the right balance between the rights and responsibilities of landlords and those of tenants.

Taking that context, Ministers set a very high bar in considering proposals for new regulations or regulatory powers, or sanctions, or powers of entry that have an impact on private landlords. In particular, in considering those, they would look for evidence of significant and widespread failings in the current system, and I think that call for evidence of significant and widespread failings is an important context for considering the proposals that we’re looking at today.

Turning to management notices, as Mr Thompson has already explained, the Housing Act 2004 introduced a range of measures that sought to improve management standards and the condition of privately rented accommodation, including, but not exclusively relating to, HMOs, houses of multiple occupation, and introduced the mandatory licensing of the larger, higher risk HMOs. As Mr Thompson explained, that risk is a combination of the nature of the property, the shared facilities, the large number of people in an individual building, but also, in some cases, the vulnerability of the people within it, and it was the risk attached to those people that’s also part of the risk. They are complex dwellings with complex risks attached to them, and that’s certainly not in dispute.

The Act also provided local authorities with the discretion to extend licensing to other, smaller HMOs, to address particular management problems where they exist in smaller properties, and this is the power to introduce an additional licensing scheme, which Mr Thompson also referred to. So where problems go beyond those larger, conventionally higher risk HMOs, local authorities can take a power to licence smaller HMOs, although very few have so far done so. HMO licensing, as has been discussed, works alongside the Housing Health and Safety Rating System, which was also introduced by the 2004 Act. Under that system local authorities can make a risk assessment of the likely impact of a property condition on the occupants of a privately rented accommodation, so it’s a risk-based system.

Where a hazard that they’ve identified presents an immediate risk – that’s a category one hazard – the local authority has a duty to take action to address that hazard, and they have a range of powers available to them to support that duty. I think most relevant to this discussion is that one of those powers is an improvement notice, which requires the landlord to make specific improvements, and if they don’t make those improvements they can carry out works in default and charge those costs on to the landlord. So it’s a very similar process, but, as has been explained, in order to access that process they have to go through making an assessment under the housing health and safety rating system – the HHSRS as we tend to call it, because it’s quite a mouthful.

Those powers, in the Government’s view, are very strong powers. They require a private property owner to make changes to their property, and potentially come with the sanction that if those changes aren’t made, then the local authority could step in, make those changes through entering private property, and charge the cost to the owner. The Government’s view is that it’s right for such a strong power to be supported by rigorous evidence, and for that evidence to be related, as it is through the HHSRS, to a risk to the occupant. It’s an important part of HHSRS that the powers are related to a risk to an occupant, not just to a problem with the property.

We’d be concerned, therefore, that the reintroduction of the old management notice regime, which related to the predecessor to HHSRS, would undermine the system that’s currently in place. It would introduce similar powers to those available under HHSRS, but without the same expectations of that risk-based evidence. One of the things I said at the outset was that the Department would look for evidence of widespread concern that the current system was failing, and one of our concerns with these proposals is that, in our regular contact with landlords and local authorities, and with groups like Local Government Regulation, who are the LGA’s experts of local authority regulatory powers, these issues haven’t been raised. There has been quite a lot of discussion over the last year or so, through various exercises, particularly those run by the new Government, of how regulatory processes carried out by local authorities could be streamlined. And there have been quite a lot of discussions, particularly around HMO licensing, in fact, and the Government is considering at the moment the HMO relicensing process as a result of those discussions with landlords and local authorities, but this issue is not one that has been raised with us except through this very specific vehicle.

Taking that all into account, the Government is therefore satisfied that the current legislation does get that right balance between the rights and obligations of landlords and tenants, and doesn’t therefore plan to make significant changes to the HMO licensing or HHSRS system, with the one rider to that that we are considering at the moment the HMO relicensing process, which kicks off very shortly, because the original HMO licenses, as those in the room will know, were issued five years ago, they’re five-year licences, and they’re about to come up for renewal. So that’s one area of work where we are considering changes to the system, because it’s something that’s been consistently raised around the country, by both landlords and local authorities, as an excessively burdensome process.

CHAIR: Thank you, any questions? Ian Mearns.

IAN MEARNS MP: Thank you very much Chairman. I’m a little taken aback that there isn’t any evidence that’s been collected by DCLG about the level of problems which exist in HMOs around the country, and I’m just wondering how rigorous the collection of advice from local authorities themselves has been. I know that, certainly when I’ve had discussions with officers of the LGA, and LACORS, there has been a very different picture in different parts of the country.

SALLY RANDALL: I think in DCLG we are certainly aware of a wide range of problems in the management of HMOs around the country, and through our contacts with LACORS, or LGR as they are now called, and direct with various local authorities around the country, we certainly wouldn’t say there aren’t problems with HMO licensing or with HMO management itself. What I was saying was that we haven’t been asked to make this particular change by anybody else, and it’s not been raised as an issue by any other local authorities who’ve talked to us; they’ve focused on HMO relicensing, where, in particular, they want to reduce the burden that they have to go through to deal with the good landlords, so that they can focus their efforts on the bad landlords, which is who they are all concerned with.

IAN MEARNS MP: So there is an acceptance at DCLG that there is a problem with bad landlords out there?

SALLY RANDALL: I think we certainly acknowledge that there are bad landlords out there; there’s no doubt about that.

IAN MEARNS MP: Okay, thank you for that. That’s all.

CHAIR: Nic, thank you.

NIC DAKIN MP: Thank you. Was I picking up that you are recognising that there is some need to streamline the HHSRS?

SALLY RANDALL: No, what we’re talking about streamlining is the HMO relicensing system, which is the process by which those HMO landlords who already have a license, come this year, will have to start applying for a new licence. Ministers don’t have any plans to make changes to the HHSRS as it stands.

NIC DAKIN MP: And will that approach assist in the problem that was being described to us earlier?

SALLY RANDALL: It’s not directly relevant to the problem described today, except in two slightly indirect ways: the first is that it will free up officer time, because it means that if we can minimise the bureaucratic burden of dealing with people who are already complying and simply need their licence reissued, then that frees up more officer time to deal with difficult problems. And the other thing is, simply the reason I mentioned it is it’s an illustration that that is how Government has responded to something where consistently several local authorities, and those representing landlords as well, have said that this is an excessively bureaucratic system, and therefore the Department is doing work to see what can be done to streamline it down. We haven’t had those concerns raised about those issues today.

CHAIR: Tracy Crouch.

TRACY CROUCH MP: Do you have any idea what percentage of properties in Manchester would be HMOs?

SALLY RANDALL: I don’t believe that we have comprehensive data on the number of licensable HMOs by district. It may be better if we can send you a note on this to explain the statistical background. Some of this is picked up through the survey of English housing, but that’s a survey, not a census, so it’s not comprehensive; it will give you an estimate, and there has been some attempt to create a register of licensable HMOs, but it’s not been terribly successful. I think we have to admit that the evidence base of the number of HMOs, particularly by district, is quite poor at a national level. Obviously local authorities are the people that we do go for the detailed information on the number of HMOs in their area.

TRACY CROUCH MP: But we’ve heard this afternoon that London has a high percentage; I think it was 37% of HMOs in London. With your knowledge of HMOs across the country, would you therefore see that as a special case? I mean, clearly that’s what’s been argued this afternoon.

SALLY RANDALL: I would certainly say that London has a high proportion of HMOs; partly it’s the nature of some of the housing stock in central London, areas like Kensington and Chelsea – very large historical properties that have been split up – and also the nature of the housing market that means that people tend to share for longer, so you get also a very large number of those smaller, not licensable HMOs, which might be single occupants, properties in other towns. So I would certainly agree that there are a lot of HMOs in London, but there are also specific areas outside London, particularly in coastal towns, where there are also concentrations of HMOs, and in some other city centres. So, London certainly has a lot of HMOs, but I don’t know if I’d say it was unique in having a large caseload, and some coastal areas would probably say that they also had a very large caseload to deal with.

CHAIR: Before we move to submissions, yes? Ian Mearns. Are we going to talk about coastal towns again, because I can chip in on that?

IAN MEARNS MP: The one thing that strikes me about this part of the proposal within the Bill is that it’s come to us through the different sort of hoops that it’s jumped through largely unaltered. We had some contention before from petitioners that the Bill, as it was presented to us now, was different from that which the London Local Government originally agreed to. Now, the fact that London Local Government was fairly unanimous in its feeling about this at the time of submission, and that it is largely unaltered, does that not at all affect DCLG’s view of the way in which this should be taken? In other words, this is the view that was put in at the time of the submission that the Bill was drafted, and is largely unaltered through its passage so far, so therefore the view of those local authorities would be unaffected by that?

SALLY RANDALL: The view of Ministers partly is that they take an overview of the regulatory burden and don’t see a case here, but also that we’ve not had submissions direct to the Department other than this. This is not an issue that comes up in casework – it’s not something that people are aware of when we are being made aware of other problems in terms of the bureaucratic burdens, so it’s just something that isn’t cropping up as regularly as we might expect if this was sort of the number one issue to be tackled in terms of streamlining the system.

IAN MEARNS MP: But would you accept, as well, we haven’t actually been killed in the rush of petitioners against these proposals?

SALLY RANDALL: No, I can’t comment upon that, but I’m not aware of the industry’s view on them.

IAN MEARNS MP: Thank you.

CHAIR: I would just say, to be fair, I think the last couple of questions probably weren’t appropriate to be –

SALLY RANDALL: We don’t mind.

CHAIR: But thank you anyway. Ms Lieven, if you want to move to close off issues that’s fine, but if you want to ask any questions technically through me of Ms Randall then please do.

NATHALIE LIEVEN QC: I think there’s only one, Sir, because it’s not appropriate for me to, through you, try and cross examine Ms Randall. It’s only that my instructions are that during the process of the 2004 Bill going through Parliament, local authorities generally, not just London local authorities, did raise issues around the HRS scheme, and concerns about maintaining the Management Notice regime. I think that the suggestion that everybody was completely happy and that this Bill is the only place where concern’s been raised is not my instructions. Perhaps I can put that to you; I don’t know whether Ms Randall knows anything about that at all.

SALLY RANDALL: I can comment on that briefly. I’d say that certainly, through the transition process from the old system to HHSRS, there were a number of local authorities who were rather attached to the old system in its entirety, and that were not keen on the introduction of HHSRS at the time. What I would say is that we’ve not seen general objections to HHSRS or to the burden of its management in recent years; that seems to us to be a relatively historical view, but that’s probably just a personal perspective on the views that we’ve seen.

CHAIR: Okay. Thank you. We’ll move to closing submissions, Ms Lieven.

NATHALIE LIEVEN QC: I’ll just be brief, again, Sir, because the Committee knows the pros and cons of this. In my submission there seem to be two arguments being made against what we’re proposing. One is it increases the regulatory burden, and secondly, why London? Now, as far as the regulatory burden is concerned, I would suggest that the situation is rather that DCLG are hanging on to their scheme, rather than looking at the merits genuinely of what we’re proposing. They’re just looking at it and saying, "Ah, you’re bringing in a new provision, therefore that’s new regulation." In fact what this is about is decreasing regulatory burden, making it easier for local authorities to take what I think Mr Thompson described as light-touch regulation away from the very bureaucratic HRS scheme, in appropriate cases. So one just has to be a little bit more imaginative – see the situation where local authorities are hard pressed to be using their resources in the most effective way possible. This isn’t increasing any burden on landlords, because the regulations already stand, they already have these obligations; it’s a way of making those regulations work in the most effective way. So this is about streamlining and making efficient regulation; it’s not at all about increasing the burden on anyone.

So far as why London and is there really a problem: well, London local authorities have spoken in the clearest way they possibly can in respect of this issue by promoting these clauses in the Bill, and obviously they had to do so unanimously to pass their resolutions. There is a strong perception in London that there is a problem here, and the way they’ve decided to deal with that is by bringing forward these provisions. They haven’t been lobbying DCLG separately, because they see the problem as being dealt with through this Bill. And there are specific issues; of course there are HMOs across the country, coastal towns, strange places like Milton Keynes have a lot of HMOs, because of the commuter issues, but London has a very high percentage proportion. It also has a lot of the bigger HMOs, for reasons Ms Randall mentioned, to do with the nature of the properties, but also because of the property market in London is a place where people are being squeezed into HMOs, and where standards can be at their lowest, because the demand for property so far outstrips the supply. So there are very specific issues around London which the local authorities have sought to deal with through this provision.

And just finally on issues raised by the Committee, particularly you Mr Chairman, in respect of the costs of enforcement: two points to be made, first of all, it’s the Promoters’ position from long experience that the power to do works in default very, very rarely actually has to be called on. Even the worst landlords don’t want the local authorities going into their properties and doing work. So what you find is that the works in default is the threat that gets the landlord to do the work, but in those few cases where the local authority actually does have to do the work, there is no more effective way of recovering for a local authority than being able to put a local land charge on, because you don’t have to effectively pursue anybody through the courts. You put a local land charge on the property and the owner can’t sell the property and can’t mortgage it. So, in fact, it’s a very simple way of getting your money back, much simpler than having to pursue any kind of civil debt.

So, Sir, in my submission there is a case about why London and the provisions are justified. I don’t think there’s anything else unless the Committee have any other questions for me?

CHAIR: Okay. Thank you. I think with that we move on to part five, housing powers of entry.

NATHALIE LIEVEN QC: Give me a moment, Sir, while we find the note. Yes. Part five, powers of entry. If I introduce it and then I’ll call Mr Princep.

CHAIR: Yes.

NATHALIE LIEVEN QC: Part five, like part four, is a provision which there were no petitions against, but which is reported against by DCLG. Part five is a bit more complicated than part four, because the reasons for part five come from the legal provisions and decisions of the residential property tribunal. I will do my best to explain these to the Committee. We do have the relevant statutory provisions if the Committee wants them, and if it becomes too complicated to understand with me just explaining it. Part five is all about the powers of entry of local authorities where they wish to carry out works or carry out surveys, whatever, under the Housing Act.

Now, the local authority, as the Committee will understand, needs to have a power of entry into a property, because otherwise, when the relevant officer goes on to the property, he or she would be trespassing. Officers can enter premises when invited by tenants, because the invitation, as long as the tenant has an interest in the property, would itself mean the officer wasn’t trespassing. But the difficulty arises, because by section 239 of the Housing Act, for any statutory function, before an officer enters the premises, he must give 24 hours’ notice.

Now, what had been the practice had been – if I take a typical scenario – tenant rings up the local authority and says, "My property is in a terrible state of repair and I can’t make my landlord do anything." The officer would then go round and visit the premises pursuant to that informal request, wouldn’t be a trespasser, because the tenant had invited them on to the premises, and the officer would then produce the relevant survey and serve the relevant notice. But the Residential Property Tribunal has found, in a series of cases, that before the local authority officer exercises any statutory power, and the critical one is to carry out a survey of the premises, he or she must have served the relevant notice under section 239 and given 24 hours’ notice. And if that isn’t done, the Residential Property Tribunal has said that any subsequent enforcement action is invalid. So any notice the local authority serves is invalid, any works done in default are invalid, and any costs can’t be recovered, because there was no statutory basis for them. So we have the situation where the local authorities now can’t safely go in pursuant to an invitation, carry out a survey, and then serve the relevant notices, because there is a severe danger that the RPT, the tribunal, will find those notices to be invalid, and then that will have cost consequences and expenses on the local authority.

Now the first point to deal with is that DCLG, as I understand it, say, "Don’t worry about that, because you can use your emergency powers under section 40." But the concern is that even those emergency powers under section 40 of the Act themselves rely on a survey having been carried out, and so they fall into the same problem: if it hasn’t been done pursuant to a power of entry notice, then the survey will be invalid. So section 40 doesn’t get us past the problem. The Committee may be thinking to itself: well what’s the difficulty with serving 24 hours’ notice? In the majority – well, I am not sure it is the majority of cases – but in many cases that is fine, that is what local authorities do. But the difficulty – and Mr Princep will go through this – is that in quite a number of cases with HMOs, certainly in London, the tenant doesn’t know the name and address of the landlord, may only have a telephone number, perhaps bank details, perhaps an agent picks up an envelope once a week. So it’s actually very difficult for the local authority to find the identity of the landlord. But the other obvious problem is quite often the landlords are companies registered outside the UK, and serving notice is a very complicated procedure. It’s not to say it isn’t possible, it’s not to say that one can’t get to the end result, but it can be a very lengthy and complex procedure.

So what we are seeking in part four is a power to enter in specific circumstances, without having served a notice – part five I should say, sorry, not part four. If I deal with the two issues together, because the other issue under part five is the authorisation of the relevant officer to allow the entry to take place, and that’s important, because it’s an important part of the protection that exists in this area. Under the Housing Act 2004, section 243, these powers can only be authorised by either a director of the relevant service or a deputy director, and those of the Committee who have any knowledge of local Government will know that those are very senior officers who have an awful lot of other responsibilities, and it may be very difficult to get that authorisation. So what we are proposing in clause 22 is simply that the next tier down of officer, so the person under the deputy director, can also authorise the action.

There are two points to make about that: that remains a very senior officer within local Government terms, and it remains an officer well divorced in hierarchical terms from the person who’s actually carrying out the survey and on the ground, so you get the kind of independence which is important. But the reason I’m doing these two clauses together is to emphasise the fact that clause 21, the power of entry, will still be subject to a high degree of control by senior officers in the local authority, so this is not an open invitation for junior local authority officers to just waltz into premises willy-nilly.

The final point to make, which Mr Princep will go through in more detail, is that DCLG, as we understand it, are taking the view that in fact an officer can be given a general authorisation to go into any premises, and therefore you don’t need to have a provision about a less senior officer being able to authorise, because the very senior officer can simply authorise the junior officer to go into any premises. That is not our reading of the relevant statute, because the relevant provision in the Housing Act section 239(1)(a) is that it has to be notice to "the premises", and Mr Princep will explain it’s always been Camden’s view that that means the authorisation has to relate to the specific premises, and not the generality of all premises.

Now, obviously the Committee can’t decide that – you’re not a court of law – but given that there is this real concern in local authorities, and that’s the way, certainly Camden, and many other local authorities have interpreted this provision, we don’t think it is at all safe to rely on an argument that the senior officer can give a one-off authorisation for the junior officer to enter any premises.

The final thing I should mention before I sit down is, I think it has been suggested by DCLG that the solution to the problem in respect of powers of entry was simply to appeal the Residential Property Tribunal decisions and say that they were wrongly decided. My instructions are that leave to appeal was actually refused in respect of the leading decision, and so the law appears to be fixed as we understand it to be at the present time. I appreciate that’s all quite complicated, because it relates back to different statutes, and we do have the legislation if the Committee wants it. But if I leave it there, and turn to Mr Princep. First of all can you explain to the Committee your experience in this area and your last relevant post, please?

DAVID PRINCEP: Yes. I’m currently an Independent Environment Health Officer working part time for a local authority and also for a landlords’ association, which operates across the country. I’ve got an Honours Degree in Environmental Health, an LLB. I’m a member of the Chartered Institute of Environmental Health. I’ve been qualified since 1976, and for over 20 years I’ve worked at improving the housing standards, both in this country and also abroad. But I’m very keen on also doing things, not just necessarily enforcement-wise, but also voluntary, and both myself and Kevin Thompson, who was on earlier, were instrumental in establishing the London Landlord Accreditation Scheme, of which I’m currently the chair, which is the largest landlord accreditation scheme in the country.

NATHALIE LIEVEN QC: You’re dealing with powers of entry. Can you just explain first of all why local authorities need powers of entry?

DAVID PRINCEP: Well, powers of entry traditionally have been basically to protect local authority staff from risk of being accused of trespass, and historically they’ve only been used in exceptional circumstances where access has been refused, or if the property is empty.

NATHALIE LIEVEN QC: So let’s go through the process: how does a council first of all become aware that there might be a serious problem at a premises, which includes an imminent risk of serious harm?

DAVID PRINCEP: Well, there are several ways that the local authority can become aware that there’s a problem, obviously the most common is through complaints, but there’s also compliance checks that a local authority may have to do around HMO licensing. There’s also, if you get a complaint of nuisance from one property to another, you may discover an imminent risk, and also occasionally a local authority may be taking some area action, around an improvement or other sort of action in the area, which would require periodic inspections.

NATHALIE LIEVEN QC: And in respect of complaints: just tell us something about the kind of complainants you’ve come across?

DAVID PRINCEP: Certainly the local authority I think tend to deal with the lower sector of the private rented market. Certainly a lot of the complainants are vulnerable, and it’s interesting the English Housing Survey say that the most likely people to make complaints to the local authority are actually single parents; they tend to have more problems with their property. But it’s generally people who are have problems with their landlord, who have tried to get the landlord to do the works, but without success.

NATHALIE LIEVEN QC: And what’s the normal procedure that a local authority follows when it gets a complaint?

DAVID PRINCEP: Most local authorities now, certainly in the London area, and talking to colleagues across the country, will actually have a general requirement that before they will investigate a complaint they make sure that the tenant has already contacted the landlord. If that is the case, then they will deal with it at that point; if not, they will suggest to the complainant that they contact their landlord and give their landlord the opportunity to do it. If they say that they’ve contacted the landlord, then a lot of authorities in London do what they call a triage approach, whereby they will send an officer out to have a look and investigate, and initially to see what the problem is, because it is sometimes very difficult to tell from the description from the tenant whether the problem is a serious problem or whether it’s a minor problem. So they approach it whereby an officer goes round, enters at the invitation of the tenant and makes an assessment. Once they have done that assessment, what they find will actually decide what action, if any, the local authority may make.

NATHALIE LIEVEN QC: Now, the powers that we’re seeking in clause 21 only relate, as you’ve already made clear, to conditions which are likely to give rise to unnecessary and imminent risks to safety or health of the occupiers of the premises. DCLG has said, quite rightly, that there’s a power to carry out emergency measures, where there’s an imminent risk, under section 40 of the Housing Act 2004. How does that relate to the powers of entry you’re seeking?

DAVID PRINCEP: Certainly, we agree that there are powers to carry out emergency works and also emergency prohibition of a property under section 40. Emergency works can be taken forward using section 40 powers, but before any of the emergency provisions can be actioned, the local authority must be satisfied that a category one hazard exists at the property. The only way that they can do an assessment is obviously to survey, to make a decision whether it is a serious issue. That then brings in section 239 requirements to give the 24 hours’ notice.

So, certainly, the view of the London authorities is that you have to give 24 hours’ notice before you can take emergency, remedial action, otherwise all the action will be invalid.

NATHALIE LIEVEN QC: And just explain – I tried to do it in opening, but I’m sure you’ll do it much better – how has that changed? Why has that become a problem recently that needs to be addressed?

DAVID PRINCEP: Well, basically, it all started with an RPT case, Residential Property Tribunal case, which I was actually involved in when I worked in Camden: Evans v Camden, whereby the RPT decided that before any enforcement action could be taken, 24 hours’ notice had to be given under section 239.

Now, I think this particular case caught a lot of the environmental health profession off key, because until this case, people had assumed that there was no need to give notice unless you weren’t invited in. But the key issue is that you’ve got a problem whereby you have to give 24 hours’ notice if you are going to visit a property – you have to give notice to the owner and to the occupier – and if the purpose of that visit is to ascertain whether there is going to be any enforcement action taken in connection with any part of the Housing Act. So, there is a subtle but significant change to the wording of the legislation and certainly the RPT cases say that subsections one to five have to be read as a whole.

If I can just read here: "Subsection five states that before entering a premises in exercise of the powers in subsection three, the authorised officer must give at least 24 hours’ notice. Subsection one states that subsection three applies where a local housing authority considers that a survey or inspection is necessary to determine any function under part one to three needs to be actioned." Then, subsection three states that "where this subsection applies, an authorised officer may enter the premises".

So, basically, what it requires is, before any survey can be carried out, the officer needs to give 24 hours’ notice, otherwise any subsequent action is invalid. This is certainly what has happened in nine of the 10 RPT cases that have actually considered these powers of entry.

NATHALIE LIEVEN QC: And would that apply just as much to the power to take urgent works under section 40 as to any other power?

DAVID PRINCEP: Yes, exactly the same power, because you have to assess whether a category one hazard exists at the property, and obviously section 40 is a power within the Housing Act, therefore you should, according to the wording of the legislation, give 24 hours’ notice.

NATHALIE LIEVEN QC: Now, in those cases, which fall within our clause, that is "where the conditions are likely to give rise to unnecessary and imminent risk to health or safety", perhaps it is obvious, but are the kinds of implications of delaying taking action?

DAVID PRINCEP: Well, the problem is obviously it is an imminent risk to the health of the occupier or visitor, so to discover that there is an issue there and then to have to leave it at least 24 hours before the local authority can take any action is unacceptable in a lot of cases. It leaves the enforcing officer with a horrible dilemma: whether they need to follow what the law says, or whether they need to act logically and expeditiously and deal with it ultra vires and risk some sort of penalty at some time in the future.

Obviously a lot of the people that we get involved with are vulnerable, and really do need to have assistance from the local authority. Some of the issues that are dealt with can be rectified relatively simply, or cheaply. Some of them might be a little bit more involved.

NATHALIE LIEVEN QC: And can you move on then to a different question, which is, what are the problems with giving 24 hours’ notice, in your experience?

DAVID PRINCEP: Well, apart from the problem of leaving the tenant technically at risk of injury, and possibly even death in some cases, there’s also the problem, even when if you decide you are going to give the 24 hours’ notice, that you then have to give notice to the occupier and the owner, if known. That can cause problems because sometimes all the local authority will have is a telephone number, and if the landlord happens to answer the phone, that’s fine, because there is no requirement for the notice to be in writing – a verbal notification is okay. Sometimes you will just have the name; you will have no address. Sometimes, you will have a foreign registered company, which makes it very difficult to be able to serve notice in those cases, and as far as I’m aware, no test cases has been taken on what you’re supposed to do in those circumstances for this.

There’s also the issue with the tenant as well. The tenant often will complain to us about an urgent issue, and then for the officer to have to tell the tenant that before they can do anything, they’ve got to leave the premises, contact, find the owner and then come back in 24 hours.

The other issue is, actually, the 24 hours’ notice doesn’t give the owner any right to go into the property anyway; they must, if they wish to go into the property, give 24 hours’ notice themselves, so they can’t go in with the officer. So, it’s distressing for the tenant, it’s distressing for the enforcing officer, which is a minor issue, but there is the problem of actually identifying the owner.

NATHALIE LIEVEN QC: Thank you. Now, is there anything else on clause 21, or shall we move on to clause 22? Clause 22?

DAVID PRINCEP: Yes.

NATHALIE LIEVEN QC: Now, this is the one about authorising the person below the Director or the Deputy Director. Just explain what the position is at the moment under section 243 if you would?

DAVID PRINCEP: Under section 243, the view is that you need to be authorised for each individual premises, and most authorities have a provision whereby before they will go to inspect upon premises believing that they’re going to take enforcement action, they have to be authorised for that particular premises from the Director or Assistant Director.

NATHALIE LIEVEN QC: And is that approach one that, as far as you’re aware, the Residential Property Tribunal was supporting?

DAVID PRINCEP: That’s certainly the case. There’s only one case that I’m aware of which has mentioned this particular point, and that was Williams v Monmouth County Council. In that, it made it quite explicit that the authorisation was not a general authorisation; it was a specific authorisation for the premises. That’s certainly the view that a lot of authorities have taken and it’s resulted in quite a complex procedure having to be set up in the authorities.

NATHALIE LIEVEN QC: And just explain in practical terms how much problem does that cause – that the authorisation can only be given by the Director or the Deputy Director?

DAVID PRINCEP: Well, clearly the Directors and the Assistant Directors are very busy and very senior members of the authority and are dealing with strategic issues, often in conjunction with other authorities. It can be a problem actually chasing them. Certainly, if one of the officers is off, if the Director is off and the Deputy is acting up in his place, normally there would be nobody covering that place, so there will be only one officer in the whole Council who, under the current provisions, as an officer, can get authorisation.

This applies to complaints generally, but obviously in a situation where you suddenly become aware that there’s an imminent risk, to actually then have to try and find the Director or Assistant Director before you can even start giving 24 hours’ notice can cause quite severe delays and problems.

NATHALIE LIEVEN QC: And we’ve produced lots of charts of individuals and how it works at Camden in the exhibits. We probably don’t need to go through that, but if we’ve got the powers in clause 22, how many additional officers would there be who could authorise the works?

DAVID PRINCEP: There would just be one additional officer. This additional officer would be still normally two tiers above the officers who would actually go out, but whereas the Director and Assistant Director are much more strategic and much more distant from the actual operation of the field staff, the officer that we’re suggesting is given delegated authority would be able to have a better idea of what is actually going on in the field.

NATHALIE LIEVEN QC: And a point that came up on part four, just do deal with it in respect of part five powers. To what degree within London local authorities do you understand the issues being dealt with under part five of this Bill to be real ones that people are genuinely concerned about and are spoken about widely?

DAVID PRINCEP: Well, certainly there is widespread support; we have found no authority which doesn’t support this, and of the 33 London authorities, we’ve managed to contact 28 authorities and every one of those is in support of these amendments.

NATHALIE LIEVEN QC: Thank you. Those are all my questions.

CHAIR: Thank you. Ian Mearns?

IAN MEARNS MP: Thank you very much, Chairman. The problem we’ve got with definitions about the levels of officers is that I think counsel has mentioned Deputy Director, Director and Deputy Director, and you yourself Mr Princep have mentioned Directors and Assistant Directors. In different London boroughs, necessarily, because of the different management structures, those definitions could be a bit cloudy. Is there a proposal or a note that goes with the Bill which sort of that opens that –

NATHALIE LIEVEN QC: If I can answer that, Sir? The relevant provision is in clause 22(2), and it’s an appropriate officer and that "(a) he’s an officer of the authority, his duties of his post consist of or include duties relating to the exercise of the authorities in connection with the authorisation given", so that’s the housing function; "(b) he’s been designated as an appropriate person by a person who fulfils the requirements of subsection 3(a) and (b), and remains so designated," so he has to be designated by the Director of Deputy Director.

IAN MEARNS MP: Right.

NATHALIE LIEVEN QC: And "(c) he reports directly to or is accountable to a person who fulfils those requirements as respects duties so relating." So, he’s got to be the next tier down, because he’s got to directly report to the Director or the Deputy Director. So, for exactly the reasons that you have said, Sir, which is that local authorities constantly reorganise themselves and rename people and no two have quite the same names, we’ve done it in that functional term, so that the person is very clearly defined.

IAN MEARNS MP: Obviously with the way in which local authority finances are being dealt with at the moment, a lot of organisations, when they look at it, flatten management structures, etc. I’m just wondering in those new structures which are happening around the country – it will be in London the same as everywhere else – will the designation of one additional individual make all that difference, because it’s quite possible that that one individual could be as unavailable as a Director or Deputy Director in an emergency situation?

DAVID PRINCEP: Certainly, obviously, we are only asking for one additional officer, but that’s a 50% increase in what we’ve got. Also, the Directors and Assistant or Deputy Directors, depending on which definition an authority uses, tend not to sit within the division; they tend to be on a different floor or somewhat remote from the field staff, whereas the field staff will often have an idea of where the location of this third officer would be, and also he may well sit in the same division and so they would be able to ascertain their availability much easier.

IAN MEARNS MP: In your experience, where there is a particular situation, a particular property, where there is a danger identified by a tenant or a resident, would there be any sort of automatic recourse to, say, the Health and Safety Executive?

DAVID PRINCEP: The Health and Safety Executive do have some control over the housing field, but they tend not to have much impact. Gas safety is an area where they may, technically, enforce certain provisions of it. But certainly the health and safety rating system does allow the local authority to take powers which also the Health and Safety Executive would do in connection with at work. Certainly the at work aspect tends to only cover houses of multiple occupation, blocks of flats, where technically they may have service staff going in to deal with the common parts, clean them.

IAN MEARNS MP: Where, for instance, they do have jurisdiction, the Health and Safety Executive, how responsive have they been, in your experience?

DAVID PRINCEP: They tend to risk rate everything, and certainly they can be of assistance, but not in an emergency situation where you want to deal with it immediately, as soon as possible. They’re unlikely to be that responsive to any issues. Also, their areas of control in the housing field are very limited: there are 29 hazards under the rating system, and the Health and Safety Executive would only deal with a couple of those areas.

IAN MEARNS MP: And apart from police officers acting under warrants of entry, can you think of anybody else who has right of entry to a property?

DAVID PRINCEP: Well, fire authority, the water authority, I think the electric authority can in certain circumstances, and the gas board in an emergency can go in without a warrant.

IAN MEARNS MP: Thank you, thank you very much indeed. It’s not unique to local authorities?

DAVID PRINCEP: No.

IAN MEARNS MP: Thank you very much indeed.

CHAIR: Tracy Crouch?

TRACY CROUCH MP: Could you just describe to me what a category one hazard is?

DAVID PRINCEP: I’m trying to explain the rating system. As Kevin explained, the process of rating the health and safety rating system, basically you look at the likelihood of an incident occurring and then you multiply it by the outcome. The outcome is risk of death, risk of injury, broken limb. It’s complicated tables that are used.

But basically, it says, legally, it’s any score above 1,000. That doesn’t mean much to the layperson, but it’s a very serious hazard which means that there’s a high probability of an injury happening in the next 12 months. But certainly, for this clause to be used, certainly for imminent risk of serious injury or health impact, it would be well above 1,000 in most cases. It would be quite significant. So, it would be the situation where there’s a risk that a child is going to get electrocuted or the family are going to fall through a floor which has got dry rot or that there’s water streaming in through the ceiling. These would be very serious, and I think a layperson in most cases would also accept that these are serious issues.

TRACY CROUCH MP: And so does this clause only apply to category one hazards?

DAVID PRINCEP: The access without the need for 24 hours, yes.

TRACY CROUCH MP: Right, okay. Could I just ask as well: are we talking only about HMOs here, or are we talking about all properties?

DAVID PRINCEP: No, certainly not. It applies to all properties. Interestingly, 24 hours is a long time in environmental health. It also applies to owneroccupiers, and in one north London area I’m working with, they’re actually looking at having to take enforcement action under the rating system against an owneroccupier, because this owneroccupier is so vulnerable and does need the local authority to actually assist them to make their property safe. Very unusual situation for that to happen, but it applies to all rented accommodation and all owner-occupied properties. But the local authority isn’t going to start rushing into owneroccupier properties – only if there’s a very vulnerable client who needs assistance.

TRACY CROUCH MP: So that leads me to my final question: why only London?

DAVID PRINCEP: That possibly is a question you need to put for the DCLG. Certainly, there does seem to be a problem with the legislation, and having spoken to officers outside London, they are concerned about it as well. But certainly, the London authorities are aware of it and have brought forward this Bill. Whether some time in the future the Government will say, "Possibly we need to look at the rest of the legislation."

CHAIR: I don’t have any questions either, so Mr Princep, thank you.

NATHALIE LIEVEN QC: Can I just clarify one point, Sir?

CHAIR: Absolutely. Mr Princep, you talked about owneroccupier properties, but this only relates to rented accommodation, doesn’t it? It’s not to privately owned, freehold accommodation?

DAVID PRINCEP: It’s very, very unlikely that we would ever use it in that situation, except where there is somebody who is tremendously vulnerable, but it is very unlikely we would ever use it.

CHAIR: That has just led to a question, because there’s a difference between what you’re saying and what counsel is saying. Because counsel is inferring, or asking the question to clarify, that it is only rented accommodation, and you’re saying it’s not?

DAVID PRINCEP: Well, the rating system applies to all properties; it applies to owneroccupiers, but the local authority rarely gets involved in owneroccupier properties, rarely –

CHAIR: But in theory, this legislation, as drafted, would allow for that?

DAVID PRINCEP: In theory yes, possibly.

NATHALIE LIEVEN QC: I’ll check that overnight, Sir.

CHAIR: Yes, I think it would be helpful if you –

NATHALIE LIEVEN QC: Be entirely clear tomorrow, and quite right that you picked up that I didn’t get the answer I expected.

CHAIR: Yes.

NATHALIE LIEVEN QC: Thank you, Mr Princep.

DAVID PRINCEP: Thank you.

CHAIR: As per the same procedure we had for part four, I’ll ask Sally Randall. We’ll try this time not to push you down the line of giving an opinion on behalf of Government Ministers.

SALLY RANDALL: That’s alright. Before I get into the general points, could I just put our view on the last question that just came up, which is that our view is the same as Mr Princep’s: that the Housing Health and Safety Rating System and the associate enforcement powers apply to all residential property. It is right that it is very rare for them to be used against the owneroccupier, because the relationship is different, but in terms of some vulnerable people, it is. Our understanding is that any changes made would apply as to the rest of the system, to all residential property; it’s a housing-wide system.

There’s probably two main points that I should cover. The first is the general policy position, and then there are quite a lot of technical points. Government’s overall policy position as you might know, is that Ministers believe there are at present too many powers of entry, not too few, and they would like to see powers of entry scaled back wherever possible. The view is that powers to enter private property should be given and exercised sparingly.

Having said that, actually I think most of the areas where we disagree with the promoters on these provisions are actually, as you will have gathered from what’s already been said, more technical in nature and about, actually, what the current legislation allows. In many ways, Ms Lieven has already made most of the points that I would’ve made, because we’ve discussed them in meetings and in correspondence already. But I will just go through a couple of points.

I think we have a different understanding of section 40 of the 2004 Housing Act, which relates to emergency remedial action and how that can be used. We recognise that the power of entry under section 40 doesn’t relate to the initial inspection of property to determine whether a category one hazard exists. But our opinion is that a local authority doesn’t need to give 24 hours’ notice to an owner of property where they have been invited in by the occupier, as they are not using their formal power of entry under section 239 of the Act. So, our understanding is that when, if invited in by a tenant, for example, a local authority could then take emergency remedial action under section 40 and it would be safe to do so. There was also some discussion about contacting landlords and that that was very difficult to do. Again, our reading of section 40, where we are talking about emergency situations, which is an imminent risk to the occupier, is that section 40 modifies other parts of the Act, so that the notice that you have to give to the owner is to be regarded as so served if a copy of it is fixed to some conspicuous part of the premises or building. So, the need in an emergency to track down the occupier and either talk to them or give them a letter is different in an emergency situation.

So, again, I think really our differences are around the interpretation of the Act as opposed to the intention. The Department agrees that in an emergency situation, where there is a risk to an occupant or visitor to the property, that the local authority should have powers to enter property and take appropriate action. The difference in this case is around what we believe the current legislation always gives powers to do.

There’s been some discussion of Residential Property Tribunal cases. I would just make a couple of comments on those. Particular reference was made to Evans v Camden in 2007, which concluded that an improvement notice served by the Council was invalid as the original power of entry had been exercised unlawfully. My understanding – I defer to lawyers on this, and I’m not a lawyer – is that the Residential Property Tribunal don’t set legal precedent, so when it was said earlier that the law was fixed by that case, that’s not our understanding, and although there have been other subsequent cases that have come to similar views, there have also been other cases that have taken the other view. There was a case in Gloucester in 2008 that found that 24 hours’ notice need not be given if emergency action is required. One feature of the Camden case in 2007 was that the view of the Tribunal was that the hazard found at the property was not a category one hazard and could therefore have been dealt with through a hazard awareness notice. So, our view is that the law and the legislation is not as clear cut as the Promoters would suggest. So, that covers the 24 hours’ notice.

In terms of the senior officer availability, I think we probably return more to the principled view that powers of entry are rare and should be exercised sparingly, where we do not see a case for needing to identify more officers who can carry out that function, because that seems to us to detract from that position; the power of entry should be used sparingly.

Again, there is a technical difference as well as that, whereas our interpretation of the Act is that an authorisation could be issued by the Deputy chief officer to individual officer to any relevant premises, but again, I’m not sure how far we will get today in terms of our different interpretations of whether the Act relates to premises or the premises or specific premises. There is a difference of opinion there. But that is against a general policy context that Ministers at the moment are not looking to extend powers of entry; they see that local authorities already have quite wide-ranging powers of entry and are able to do the job with them.

CHAIR: Okay, thank you. Nic Dakin?

NIC DAKIN MP: There does appear to be a different legal view on how the powers operate. Has the Department got any desire to clarify that legal view, so that we don’t have these problems, not only in London but elsewhere in the country?

SALLY RANDALL: I think we’ve been involved in discussions with our lawyers, with the promoters to go through that. I think because we are all involved in this process at the moment, that is the preoccupation in terms of clarifying it going forwards. Depending on the success or otherwise of this Bill, we would then look to see whether we thought any clarification was needed.

NIC DAKIN MP: So would the Department’s clarification in relation to this Bill, if these provisions in the Bill didn’t happen, assist in a court of law, in terms of allowing the Department’s interpretation to triumph over the other interpretations?

SALLY RANDALL: I don’t know; I’m not a lawyer, I wouldn’t want to comment in detail on that. I would say it is for the courts to interpret legislation rather than the Department, and all we can really do is set out our understanding of the legislation, which is that it is sufficient and gives sufficient powers. Whether it needs to be clarified in future, which may perhaps be by amendment to clarify the original purpose rather than to give greater power of entry, would be a question for Ministers in future.

NIC DAKIN MP: Okay.

IAN MEARNS MP: I’m fine, in as much that one significant thing that Ms Randall said is that Ministers are not looking to extend powers of entry, and I don’t want to crossexamine her about what Ministers have –

CHAIR: Very wise. Ms Lieven, is there anything through myself that you wanted to –

NATHALIE LIEVEN QC: No, I haven’t got any questions, Sir.

CHAIR: Okay, thank you Ms Randall. Have you got anything you want to sum up on four and five?

NATHALIE LIEVEN QC: Yes, just very briefly. As I understand what Ms Randall is saying, there is actually no principled objection to either of these clauses. The difference between us is that DCLG think that we already have these powers, and we think on the basis of RPT decisions that it’s highly questionable. The critical point is that if it is highly questionable and we’re right, and we haven’t got the powers, then any local authority that tries to rely on the permission as it stands at the moment is seriously at risk in relation to costs, either the costs of the actions or the cost of remedial works.

So, just dealing with each one in turn. In terms of the power of entry, I think there might be a slight misunderstanding between DCLG’s position and ours. Under section 40(1) of the 2004 Act, the local authority can only undertake emergency remedial action if it is satisfied that a category one hazard exists. Now, in order to get to the stage of being satisfied that a category one hazard exists, the local authority has to have undertaken a survey. What the RPT has said is that that survey, in order to be a valid survey, has to be undertaken pursuant to a power of entry. So, the power that Ms Randall referred to in section 40 about dispensing with the need for notice is the notice of actually doing the remedial works; it isn’t the notice of the survey. So, on the basis of the RPT decisions, we would still fall foul of those decisions because the original survey would’ve been invalid, and that vitiates – sorry, legal word – or undermines the whole legal process that is undertaken. So, Sir, the critical point is that Ms Randall is saying that, "Well, you can already do all this"; we’re saying, "We don’t think we can." On Ms Randall’s interpretation, all we are seeking is clarification to make the law entirely clear in London, that the position is as DCLG says it should be. That is all we seek, so that there is no confusion.

She is right to say – and I tried to explain this, although probably not very well in opening – the RPT doesn’t strictly set a legal precedent, but because Camden were refused permission to appeal the RPT decision there, effectively the law is fixed, because nobody has been able to take this matter to a higher court, because the Lands Tribunal didn’t give permission to appeal. The only basis on which they could’ve done that is that they must’ve taken the view that the law is clear. So, we are in a slightly odd situation where the DCLG says the law is one thing, and it appears that the courts have said the law is different.

The position, I would suggest, is even clearer and if not glaringly odd in respect of senior officer authorisation, because the position of DCLG is that officers can be authorised to enter any premises. Now, of course, if that was right, we would be more than happy; we would be skipping away from this committee perfectly cheerfully. The difficulty is that we just do not think, on advice, that that accords with the words of the 2004 Act, which refer to "the premises", not "any premises", under section 239. But again, all we are asking for is clarification in this Bill that makes the position entirely clear. So, we are not asking for any extension to the powers of entry at all over what DCLG say; in fact, we are saying, if we are right, the powers of entry will still be very much narrower than DCLG. So, I hope I have made that relatively clear.

Thank you Sir, that deals with all the opposed clauses.

CHAIR: Does anybody want to ask Ms Liven anything on that point? Okay, well, that leaves us just with the unopposed clauses. Looking at the time, rather than start something – we’ve got just over 10 minutes or so. It seems to be probably logical that we pause there and we do unopposed clauses in the morning. On that basis, then, we will adjourn until 09.30 tomorrow morning.

NATHALIE LIEVEN QC: Can I – sorry.

CHAIR: Yes.

NATHALIE LIEVEN QC: As far as the unopposed clauses are concerned, what we are intending to do is call Mr Wilson on clause 8, which is the tables and chairs clauses. We are not at the moment intending to call any witnesses on any of the other clauses, but if the Committee want us to call witnesses then we will try to arrange to do so tomorrow. But I’m not going to ask the fallback witnesses to be here tomorrow morning at this stage.

CHAIR: I think that for most people, I’m sure that will be fine. But we will adjourn until 09.30 tomorrow morning.

(End of Session)

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