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Lord Lucas: The noble Earl is quite correct. I believe that I was in the Chamber for most of the time before dinner, but of course I missed that particular argument. If I had heard it, I should have been able to repeat it. I also take the opportunity to apologise to the noble Baroness for not having been present right at the beginning of the introduction to her amendment. I was rather taken aback by England's third goal and, as a consequence, was not watching the clock.

Baroness Hamwee: The reason for me being a little late this afternoon was due to the number of Dutchmen circulating in central London; I knew that they were Dutch because they were wearing inflatable clogs on their heads.

My noble friend is quite right about judicial review. I do not believe that the Minister's answer stands up. Certainly, it cannot be a remedy to be recommended. The noble Lord said that my amendment would "drive a coach and horses" through the provisions regarding introductory tenancies, but of course that was part of the idea. I entirely share the feeling expressed by the noble Baroness that the message which will be sent out to introductory tenants is not that they have to earn the right and show that they can behave well, but that they should not behave badly for the first year.

While I accept that we are discussing an elective procedure, I have considerable reservations about the whole proposal. However, points have arisen as a part of this group of amendments to which we shall return later this evening. Therefore, I think it best to review--non judicially, in my case--the totality of the debate and possibly return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255E not moved.]

Lord Swinfen moved Amendment No. 256:

Page 73, line 38, at end insert ("or it is unreasonable to make such an order").

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The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendment No. 257. During the 12-month period of the introductory tenancy, a landlord will be able to evict a tenant at any time. The landlord will have to obtain a possession order from a court but, as I understand the Bill, there will be no defence to the possession proceedings and the landlord will not have to prove to the court that tenancy conditions have been broken. There is nothing in the Bill to indicate on what grounds a landlord would issue such proceedings, but debate around the Bill has indicated that the introductory tenancy is intended as a method to enable the speedy eviction of anti-social tenants.

The concern about the introductory tenancy regime is that it gives considerable power to landlords to make decisions as to which tenants are behaving anti-socially and gives the tenant no defence against proceedings which may be unreasonable. There are particular concerns among representatives of disability organisation that people with unusual behaviour due to mental illness or disability may find themselves summarily evicted by a landlord who is under pressure from other residents, or who is unwilling or unable to try to resolve any problems in a more constructive manner.

I turn specifically to Amendment No. 256. As I have already said, in order to evict an introductory tenant, a landlord will have to obtain a court order. Under the proposed legislation there will be no grounds on which the court can refuse to give a possession order to enable a landlord to evict an introductory tenant. The amendment seeks to ensure that, if the court does not feel it to be reasonable to make such an order, it will not have to do so. It would thus ensure that in cases in which eviction was not in the eyes of the court the most appropriate way to deal with a problem a tenant could not be evicted. As the proposals are currently set out, there is no incentive for a landlord to first try to solve problems more constructively because he will have the total power to evict an introductory tenant in all circumstances.

The concept of "reasonableness" in courts issuing court orders for possession is already well established. There are at present a number of grounds for possession of assured and secured tenancies where the court must be satisfied that it is reasonable to make an order. These include possession due to a breach of the conditions of the tenancy and for rent arrears in certain circumstances. The courts are, therefore, experienced in making decisions as to whether it is reasonable to grant possession orders.

Amendment No. 257 goes one step further than the previous amendment. It states that the court must order a possession order only where it is reasonable and, in addition, lays down criteria which the court must take into account in determining reasonableness. The amendment would help ensure that local authorities which establish introductory tenancies have fair procedures for taking action against such tenants. While the Government have indicated that it is their intention that that should be the case, in the Bill as constituted

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there is no legislative safeguard for a tenant whose landlord does not act reasonably or follow the Bill's procedures.

It is important, for example, that in the interests of natural justice an introductory tenant who is threatened with eviction should be given ample warning of the fact that such action is to be taken and given the opportunity to correct his behaviour. It would also seem appropriate that, in the case of tenants with disabilities or mental illness which may be leading to perceived anti-social behaviour, the landlord should take that into account and make every effort to liaise with the social services department or any other body involved in providing care and support to the individual. The amendment would also ensure that any action taken against the tenant was not discriminatory on the grounds of a person's race, sex, sexual orientation or disability. I beg to move.

Baroness Darcy (de Knayth): I should like to express my support for the amendments to which I have attached my name and which have been so clearly explained by the noble Lord, Lord Swinfen. The introductory tenancy scheme is new; it gives much power to landlords and provides very little comeback to tenants. As the noble Lord said, disability organisations are genuinely concerned that people with mental illness or disabilities may find themselves evicted peremptorily for supposed anti-social behaviour, either because their landlord is unsympathetic or because of a lack of understanding on his part; or, indeed, because of pressure from other tenants, as mentioned by the noble Baroness, Lady Hollis of Heigham.

Amendment No. 256, whereby the court does not have to grant a possession order if it feels that that is unreasonable, and Amendment No. 257, which describes the yardstick by which to judge reasonableness, would ensure that the landlord considers carefully before taking action against a tenant. I hope the Minister will feel that these modest amendments have value. I look forward to hearing his reply.

Baroness Hollis of Heigham: I have much sympathy with the purpose of these amendments--they are consistent with what we were discussing earlier on the previous amendment--particularly as I do not like the concept of introductory tenancies. However, I hope that the noble Lord, Lord Swinfen, will not disagree with the point I am about to make. In a sense the provision is slightly the wrong way round because noise from a tenant suffering from schizophrenia, for example, is no more tolerable to the nextdoor neighbour than if the noise is being made by a teenager who will not turn the hi-fi down and who is not under the control of his parents and who has no such mental illness. The right response is not necessarily to say that the landlord should not be granted possession, either under an introductory tenancy or under any other tenancy, but that the requirement should be on the landlord to produce more satisfactory alternative accommodation; that is, accommodation with appropriate support structures and the like.

In other words, where this sort of situation blows up--if I may use that phrase--it is usually because there has been an inappropriate placing of a vulnerable tenant

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on an estate or in a property where there are no support services. The right answer is not necessarily for that tenant to remain there, or for the courts to decide whether that tenant should remain there. However, an obligation should be placed on the local authority as regards seeking possession of a property where the tenant has mental or physical health problems. There should be a duty--not merely a permission--on the local authority to provide more suitable alternative accommodation. That would seem to me a more helpful way forward because it then makes it appropriate for the other tenants to have quiet enjoyment of their property. It also ensures that the tenant who may have mental or physical health problems continues to enjoy proper and decent, but now supported, accommodation.

Earl Russell: I wish to support these amendments. Legislating is a little like firing a shotgun. One is aiming to hit something. It may be a perfectly legitimate purpose to want to get rid of anti-social tenants. It may be a perfectly legitimate purpose to want to get rid of pigeons. However, in both cases some of the pellets are likely to go to places where they are not intended. We create powers; quite rightly we do not thereafter have a continuing control over how those powers are exercised. They may be exercised in all sorts of ways. As we in this Chamber cannot sit down and decide whether each several tenant is anti-social--and if we did, we would never do anything else--the restraint of reasonableness, as proposed by the amendment of the noble Lord, Lord Swinfen, is very much the right one.

I take the point that the noble Baroness, Lady Hollis of Heigham, made; namely, that noise made by a schizophrenic is just as annoying to the neighbour as noise made by a careless teenager. But the fact that it is just as annoying may be compatible with it being rather more tolerable. In most decent roads--certainly including my own--people feel that there is a balance to be struck between the reason a disturbance is made and the amount of nuisance it creates. To take an example from my memory, I remember when my nextdoor neighbour at school decided to learn to play the tuba. I decided that I had to make a great effort to tolerate that when he was playing it himself, but when his friends came to exercise their lungs upon the instrument I did not feel the need to extend the same tolerance. This is where it may be relevant that the tenant may have some form of mental handicap. He may be schizophrenic, for example. The pacing late at night can be trying but because we know this sort of thing can happen to any of us we stretch a point and tolerate it. That is an important part of common humanity which I would not want these introductory tenancies to destroy.

It is also a vital point, one that has been made before in this Chamber many times--I repeat it only quite cursorily--that where one is dealing with tenancies for people with physical disabilities, there may be a question of purpose building which would be entirely wasted if one thought that the person might be chucked out after a year, and where one may have to have a process of learning to live and let live which may take a little longer. The reference to grounds for writs is of course also well taken.

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A power which is as uncontrolled as the power created by Part V of the Bill could be dangerous in future in the hands of someone with prejudice. The reference to the power is important, but the test of reasonableness which is implied in Amendment No. 256 is right.

Therefore, again, we need to have restraints on the exercise of power. One cannot have absolute power without restraint. It will come in under judicial review if we do not put it in the statute. However, I believe that it is tidier, more limited, more specific and more predictable if the provision is put in statute.

9.15 p.m.

Lord Lucas: As with the previous group of amendments, we do not wish to fetter the way in which the power works in practice, to reduce it to the level of existing powers. We want it to be quick and easy in operation.

It is, of course, of vital importance that tenants who are in some way vulnerable, have adequate safeguards under the new system. I am thinking here particularly of the disabled--those individuals receiving community care, and those who do not speak English as a first language.

Councils will already be aware of the needs of those of their secure tenants who are vulnerable and that they will also need to act fairly and reasonably with regard to every aspect of the introductory tenancy regime. The Department of the Environment guidance, which will be sent to all local authorities, will reinforce this message and will contain advice on the special arrangements that need to be made to protect vulnerable introductory tenants. The initial information given to prospective tenants should be easy to understand so that tenants are aware of their duties under the tenancy. Where a tenant has special needs (for instance, people with learning disabilities), the authority should choose communication methods carefully to get across what is required of them and what support services are available. Carers and helpers should also be involved.

Liaison with social services will be essential. Authorities should make arrangements for automatic notification to social services at an early stage once any problems arise. Liaison should be on a formalised basis with each party (the housing department, social services, NHS and the tenant) aware of their role.

Vulnerable introductory tenants should be visited regularly either by the staff of the housing department, or by a care agency involved. Regular visits will enable any problems to be highlighted quickly.

I cannot emphasise too strongly how important it is for authorities to ensure that vulnerable people are fully protected. It will be essential that local authorities are fully alive to the needs of those tenants and to their relationship to the community as a whole.

The points made by the noble Baroness, Lady Hollis of Heigham, about support and placement are particularly relevant. However, I think in particular of the point just made by the noble Earl, Lord Russell. He spoke of the importance of our living as a community with people who suffer from disabilities which

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neighbours may find a little upsetting. We must make sure that councils are vigilant in ensuring that neighbours are not able to make a case for eviction against a vulnerable tenant whose behaviour they find upsetting. Such situations will require sympathetic but firm handling by the local authority. Eviction of the vulnerable tenant in those circumstances is not an acceptable result.

Clearly, as drafted the amendments suffer from the same deficiencies as those from the first group and we would not be able to accept them. With the assurances that I have given to the noble Lord, Lord Swinfen, of the attitude that we take to the problem, which will be communicated to landlords through our guidance, and which we would expect to be echoed through the application of judicial review should that prove necessary--given the general practice of local authorities and housing action trusts in this matter we would not think it to be necessary in all but the very occasional case--I hope that he will feel able to withdraw the amendment.

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