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Baroness Gardner of Parkes: I am somewhat concerned by this amendment because of the point that I have made at other stages in the debate. People tell me that if one is sued or taken on in any proceedings by someone who is legally aided--and this situation is equivalent because of the exemption provision--one has a "no-win" situation. Even if one wins the case the other person cannot lose a penny or be endangered in any way.

As regards the tribunals, I believe that their chairmen go to great trouble to assist unrepresented people. I rarely agree with the noble Lord, Lord Monkswell, but he made a very interesting point when he said that the only way to be sure was for no one to be represented at the valuation tribunals.

Lord Lucas: We have had the pleasure of listening to a very powerful presentation by the noble and learned Lord, Lord Archer of Sandwell on a subject on which he is a great authority. I am sure that we shall ponder everything he said. Perhaps I may be allowed to concentrate on the substance of this particular amendment. As the noble and learned Lord said, in subsections (5) and (6) we have provided ourselves with the power to make arrangements for a leasehold valuation tribunal to waive fees depending on the financial resources of the party by whom they are to be met. We have also provided that statutory means-testing regimes may be used, but we have deliberately not specified which regimes these are as they are subject to frequent change.

At this stage we feel that it is unnecessary to require any order made under this power to reflect a specific means-testing regime such as that proposed in this amendment, to be put on the face of the Bill. We need to give further consideration to the detail of how to operate this scheme flexibly. There is a great deal of work for us yet to do. We need to consider such matters as passporting connected with other benefits.

I believe that the core of the point made by the noble and learned Lord, Lord Archer of Sandwell, is this. If some poor person is considering going to a LVT and he can see by then--we shall have the order in place--that he is eligible for a remission of fees, how does he know that he will get that remission without having to go through the whole process and take the risk of not getting that remission at the end? We plan that the rules shall be clear enough for that to be settled at the very outset of the application by the clerks to the LVT. We also hope that the rules will be clear enough to enable the tenant to work out for himself whether or not he

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will qualify for fee remission. Therefore, in practice, we believe that this is a problem that will not arise because it will be settled at the outset before the fee has been incurred.

Lord Archer of Sandwell: I am grateful to those who have participated in this debate. In particular I am grateful for the point made by the noble Lord, Lord Meston. Perhaps that is something we should reflect on before Report stage. As regards the two comments made by the noble Baroness, perhaps it was my fault for introducing something which was not directly relevant to this amendment. I accept her comment that legal aid can be unfair in reverse. It does not seem to me that the answer to that is to withhold legal aid; still less to ensure that no one has the benefit of professional advice and representation which both sides so obviously need. That is perhaps an issue which we can join at a later stage.

I am grateful to the noble Lord, Lord Lucas, for at least the assurance which he has given that it is intended to frame the order in a way which will ensure that someone knows at the outset and before committing himself, whether he will be liable for fees. I am not sure whether that includes liability to reimburse the other side for outlays on fees. I invite the Government to consider that.

The Minister's reply does not wholly meet the point which we had in mind because, as I said, legislation by undertaking or even by, "what we intend to put in the order" gives rise to difficulties. I am not wholly clear why it should not be stated in the Bill because this is a principle which is not liable to change. As the noble Lord himself implied, it is the opposite of flexibility which we are seeking here. The problem with flexibility is that it is unpredictable. However, perhaps we should all reflect after this preliminary canter. I give no promises about my future good conduct, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird): Amendment No. 246ZA has been substituted for Amendment No. 246.

Lord Lucas moved Amendment No. 246ZA:

Page 54, line 9, at end insert--
("Transfer of cases from county court.
31C.--(1) Where in any proceedings before a court there falls for determination a question falling within the jurisdiction of a leasehold valuation tribunal under this Act, the court--
(a) may by order transfer to such a tribunal so much of the proceedings as relate to the determination of that question, and
(b) may then dispose of all or any remaining proceedings, or adjourn the disposal of all or any of such proceedings, pending the determination of that question by the tribunal, as it thinks fit.
(2) When the tribunal has determined the question, the court may give effect to the determination in an order of the court.
(3) Any such order shall be treated as a determination by the court for the purposes of section 78 of the Housing Act 1996 (restriction on termination of tenancy for failure to pay service charge).

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(4) Rules of court may prescribe the procedure to be followed in the court in connection with or in consequence of a transfer under this section.").

The noble Lord said: I spoke to this amendment with Amendment No. 243. I beg to move.

On Question, amendment agreed to.

[Amendment No. 246A not moved.]

Lord Meston moved Amendment No. 246AA:

Page 54, line 12, after ("tenant") insert ("or recognised tenants' association").

The noble Lord said: I hope the intention of this amendment is obvious. It suggests that it will be useful if a recognised tenants' association, as defined in Clause 86 of the Bill, can make an application under the proposed new section, especially as a recognised tenants' association can appoint a surveyor for the purposes of Clause 81. I beg to move.

Lord Lucas: We would expect that most applications would be made by the tenants during the course of proceedings. It would be odd if a tenants' association needed to make a separate application at a later date. We have provided in the clause that one tenant can apply on behalf of everyone, so we do not see what advantage there would be in a recognised tenants' association also having this right. We therefore feel that this amendment is unnecessary as we have provided for its effect in Clause 79.

Lord Meston: I am grateful for the Minister's response to the amendment. I shall need to think about this but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79, as amended, agreed to.

Clause 80 agreed to.

Schedule 4 agreed to.

[Amendment No. 246B not moved.]

9.15 p.m.

Clause 81 [Appointment of manager by the court]:

Lord Lucas moved Amendment No. 246C:

Page 55, line 29, after ("made)") insert (", in paragraph (a) (breach of obligation by landlord), omit sub-paragraph (ii) (requirement that circumstances likely to continue).
( ) In that subsection,").

The noble Lord said: In moving Amendment No. 246C, I should like to speak also to Amendments Nos. 246D to 246G, 247A, 248A to 248G, and 275A, and to refer in passing to Amendment No. 247B.

These amendments make a number of changes to Clauses 81, 82 and Schedule 5 to the Bill which establish the right of a tenant of a flat to apply to a leasehold valuation tribunal for the appointment of a manager on the grounds that the landlord is in some way failing in his management responsibilities. There are two changes of substance.

Amendments Nos. 246C, 248B and 275A concern the grounds for appointing a manager set out in the existing legislation; namely, that the landlord is in breach of his

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obligations under the lease and that this breach is likely to continue. The amendment deletes the second part of this condition which has been widely criticised by members of the Opposition in another place-and probably would have been criticised here if we had not removed it--and tenants' groups. This is because it allows the landlord to give assurances to the court that although he may have failed in the past, he will mend his ways and not do so in future. It is further suggested that the courts have often felt obliged to accept these assurances, such that there are very few cases of tenants ever succeeding in exercising this right.

The Government have considered those criticisms carefully. As my right honourable friend the Secretary of State for the Environment said at Report stage in another place, we have to consider the case where the freeholder was for some genuine reason not able to deliver a service in the past but can demonstrate that he will be able to do so in the future. He may therefore have genuine reasons for a temporary breach of his obligations. However, on reflection we believe that the tribunal will be in a position to take all such factors into account, particularly as the provisions in Part II of the Landlord and Tenant Act 1987 also require the tribunal to satisfy itself that it is just and convenient to make the order in all the circumstances of the case.

Also under the two additional grounds introduced by Clause 81, there is no such requirement for the tribunal to take account of the likely future behaviour of the landlord. This amendment therefore ensures a degree of consistency between the three grounds which the tribunal will have to consider, and should improve the chances of tenants succeeding in cases where a history of bad management can be demonstrated.

Amendments Nos. 247A and 248G will restrict the right of appeal in the cases from a leasehold valuation tribunal to a Lands Tribunal. An appeal will only be possible with the approval of either tribunal. This parallels the appeal procedures that we have introduced in relation to the new jurisdiction contained in Clause 79 of the Bill for leasehold valuation tribunals to determine the reasonableness of service charges. It is designed to deal with the possibility of the quite unacceptable intimidation of leaseholders by unscrupulous freeholders. It is well known that one of the means of intimidation used by some freeholders is to threaten their tenants that they will take every case to appeal, no matter what the strength of their argument, in the hope that the potential costs involved will deter the leaseholders from pursuing their case.

I note that the noble Lord, Lord Dubs, has tabled a similar amendment, Amendment No. 247B. I hope that he feels that our amendment, Amendment No. 247A, achieves the desired effect.

Finally, Amendments Nos. 246D to 246G, 248A, and 248C to 248F are minor drafting amendments to these provisions of the Bill, in relation to the application to a leasehold valuation tribunal for the appointment of a manager. I beg to move.

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