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Lord Lucas: I accept that it would be quite unreasonable in nearly all cases for landlords to receive an enforcement notice without any prior warning and then have only a three-week period in which to take the necessary steps. The reason for such a tight time limit is that, if the property is in such a state of disrepair that the tenants' welfare is at risk, the authority must be in a position to demand urgent action. It is general practice for local authorities to allow much longer.

When we come to deal with Amendment No. 240 we shall be looking at some provisions which I believe will ameliorate the situation. That amendment will require a local authority to give written notice of its intentions to serve an enforcement notice under Section 352 or Section 372 of the 1985 Act and to hear representations before any formal enforcement action can commence. That would mean that taking formal enforcement action by serving a Section 352 notice would only occur as a last resort or when urgent action is necessary to protect the safety or welfare of the occupants of an HMO. Under those circumstances, when that amendment is incorporated, I believe that my noble friend Lord Gisborough should find the legislation agreeable to him.

Lord Gisborough: I thank my noble friend the Minister for that response. On the face of it, it would seem that that would be satisfactory. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 agreed to.

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Clause 72 [Duty to keep premises fit for number of occupants]:

Lord Gisborough moved Amendment No. 227:

Page 47, line 21, at end insert ("which may expose any tenant or other occupant of the premises, or any other person, to risks to their health or safety").

The noble Lord said: In moving Amendment No. 227 I shall, with the leave of the Committee, speak also to Amendments Nos. 229, 23l and 232.

Clause 72 is a key part of the Government's package of measures to improve standards in houses in multiple occupation. Under the clause, which amends the Housing Act 1985, landlords will be under a general duty of care to ensure that they manage their properties in such a way as to prevent the necessity for the service of a Section 352 notice.

Breach of that general duty of care will, under the Government's proposals, be a criminal offence. That is a quite wide-ranging and, some might say, draconian new power which local authorities are being given. Some landlords have expressed considerable unease at this new duty of care, not because they are unwilling to promote good standards in their properties but rather because they fear that they may be criminalised for trivial matters, or in respect of things which are outside their control. Therefore, we must ensure that there are appropriate safeguards to ensure that that power is not abused.

Amendment No. 227 seeks to ensure that a landlord could only be prosecuted for a breach of his duty of care where there is an actual risk to the health or safety of any person in the premises and that circumstances falling short of a threat to health and safety would not put the landlord in breach of the duty of care. The amendment is particularly important when one considers that landlords have been threatened in the past with Section 352 notices for relatively trivial matters, such as a requirement that each unit in an HMO should be provided with its own refrigerator and individual wash-hand basins, even though such facilities had not been requested by the tenant.

The duty of care is intended to prevent landlords from supplying unsafe or unhealthy accommodation. There is a danger, however, that the duty of care will go further than this and include matters which go beyond health and safety and are much more to do with amenity standards. Is it right, for instance, that a landlord might face a £5,000 fine because a tenant's partner has moved into the property, possibly without the landlord's consent and as a result, the house should now, according to the local authority, have three lavatories rather than two because the number of residents has increased by one? The duty of care must not be so severe as to discourage prudent law abiding landlords from having anything to do with residential letting, leaving only the cowboys who will ignore the law, whatever legislation the Government put in place.

Amendment No. 229 further amends the duty of care so that a landlord who had breached the duty of care but had a reasonable excuse for doing so would not be prosecuted. In all these issues we must remember that

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housing is of an infinitely variable character and form. This amendment makes allowance for the practicalities of carrying out work under particular circumstances. For instance, a landlord may wish to enter the premises to carry out works to ensure that he is not in breach of his duty of care but finds that the tenant is being obstructive and is refusing access to the property. I have experienced that. It would be quite unreasonable if a landlord were to be penalised for failing to comply with the general duty of care when matters were beyond his control. Many HMOs are let to students who may ask that the landlord does not carry out work to the property during term time. It would be unreasonable of the landlord to ignore this request and to do so may leave him open to a charge of harassment. On the other hand, he may be obliged to ignore his tenants' request because if he does not carry out work to the property he would find himself in breach of the general duty of care.

My amendment is not intended to be a let out for those landlords who have no intention of bringing their property up to a required standard. It will, however, allow for unforeseen circumstances to be taken into account. It is worth remembering that when the Bill was originally drafted the landlord was only deemed to have committed an offence if he had knowingly failed to comply with the duty of care. The "knowingly" provision was removed from the Bill at the Committee stage in another place. The Government suggested, however, that an alternative form of words should be put in its place. That has not happened. My amendment suggests that those words should be, fails to comply "without reasonable excuse". I hope the Government will be able to adopt this as an appropriate compromise.

When considering whether a landlord is in breach of the duty of care, Amendment No. 232 will ensure that the local authority can have regard to all the circumstances of the particular case and take account of the infinitely variable characteristics of buildings and circumstances in the private rented sector. In particular, the local authority in considering whether there has been a breach of the duty of care will be able to look at the physical nature of the building and the cost of remedial work. It will ensure that where there are inherent but reasonable obstacles to meeting the standard, the duty of care may not necessarily be breached. The local authority may want to consider, for example, circumstances where the house is shortly to be demolished; houses about to undergo a change of use; houses where the work for good reasons cannot be undertaken for the moment; and houses that nearly meet the requirements but cannot be further upgraded without disproportionate expenditure or disruption. In all of these cases it would be unreasonable for a local authority to require extensive works to the property. My amendment would ensure that the duty of care would be implemented flexibly and with discretion.

Amendment No. 231 seeks to ensure that landlords have adequate advice about their new duties in order that they are able to perform them economically and promptly. Under my amendment local authorities would be required to provide information to assist landlords with their duties. The local authority is in a good

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position to provide this as its officers are already in possession of extensive specialist experience in the field, and the advice required by my amendment could be given by local authorities' existing environmental health departments. Without the amendment there is danger that the new duty of care will be seen as an unreasonable and intolerable burden. The requirement to provide landlords with advice should foster a greater spirit of co-operation, and break down some of the barriers which currently exist between landlords and local authorities. I beg to move.

Baroness Hollis of Heigham: I had not intended to speak because this is not the section of the Bill in which I am most closely involved. However, I cannot resist asking the Government to reject Amendment No. 227.

Some of the worst housing that exists is at the bottom end of the HMO sector. Local authorities' powers are still often too modest and too hard to enforce to ensure that appropriate accommodation is provided for people for whom it is home. Any efforts to dilute already not very strong powers would be greatly regretted.

I refer, for example, to the notion that it is not the landlord's fault if there are insufficient toilets because additional people have arrived. The whole point of having standards is to ensure that there is adequate sanitation, water supply, safe storage, fire protections, lighting, safety on the stairs, and such considerations. It is hard enough now for local authorities and environmental health officers to make those standards stick. If the Committee were minded to accept the amendment in the name of the noble Lord, Lord Gisborough, the task would be made even more difficult and the housing conditions for many people would become even poorer.

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