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Baroness Hamwee moved Amendment No. 264AA:

Page 93, line 43, leave out from second ("occupation") to end of line 45 and insert ("both by him and by any other person who might reasonably be expected to reside with him.").

The noble Baroness said: This amendment seeks to insert slightly different words at the end of the clause, leaving out a reference to people who normally reside with the applicant. The purpose is to ensure that, in assessing whether a person is homeless, account is taken of family members and others, perhaps carers, who do not at that time normally reside with the applicant but who would normally reside with the applicant were it not for a lack of suitable accommodation.

The effect of Clause 157(2) is that a person is homeless if he or she does not have accommodation where he or she can live under the same roof together with other members of the household who normally reside together. The policy is clear: it is to enable people who are separated for want of a home to be treated as homeless, albeit that one or other of them has separate accommodation.

As I understand it, the wording is the same as that in Section 58(1) of the 1985 Act; but there have been problems in practice. The emphasis on people who "normally reside" together excludes those who would have resided together--for example, an engaged couple expecting a child, a family who need accommodation with an elderly parent in order to care for that parent, or a terminally ill person who cannot manage without a live-in carer. The amendment therefore borrows alternative wording from Section 75 of the 1985 Act and, to a very modest extent, widens the scope of those whom the local authority should consider a separated household. I beg to move.

Lord Hylton: This is an important amendment. Perhaps the Minister in replying will say whether the wording of the amendment will cover cases such as that where a child has been fostered or taken into care and where it is extremely desirable that it should return to its natural parents.

Lord Mackay of Ardbrecknish: Clause 157 defines when accommodation is available for a person's occupation. The amendment moved by the noble Baroness would alter the definition of availability so as to refer simply to accommodation being available for occupation both by the person,

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The amendment is unnecessary. As drafted, Clause 157 already provides what the amendment seeks to do; namely, to provide that accommodation must be available not only to the applicant but also to,

    "any other person who normally resides with him ... or in circumstances in which it is reasonable for that person to reside with him",
for it to be regarded as available for the applicant's occupation.

The amendment would also remove reference to,

    "other persons who normally reside with the applicant as a member of his family",

having to be taken into account in determining availability. That removal is not desirable. In fact, it might impinge on the question put to me by the noble Lord, Lord Hylton. While family members of the applicant's household would fall within the wider category promoted by this amendment, it is desirable and appropriate that they should appear as a discrete group on the face of the legislation. So, not only do I not believe that the noble Baroness's amendment is necessary, but worse, I believe that the way in which it would operate, because of what it takes out, would in fact not be desirable. With that explanation, I hope that she will feel able to withdraw her amendment.

Baroness Hamwee: That is helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Baroness Hollis of Heigham moved Amendment No. 264AB:

Page 94, line 3, at end insert--
("( ) in the case of a tenancy, he is unable to comply with the terms of the grant of the tenancy and the terms of the tenancy at the time of the grant, having regard to his own resources and such public assistance as is likely to be available to him, or").

The noble Baroness said: I expected this amendment to be grouped with the amendment in the name of the noble Lord, Lord Northbourne. I shall try to be brief, given the lateness of the hour, but it is an important amendment and I do not feel that I should withdraw it.

The amendment seeks to ensure that available accommodation is available. If, for example, the tenant cannot afford to gain access to it, the accommodation is not to be regarded as available. In other words, it is reasonable for him to be regarded as not having access to it.

That problem will occur more frequently with the new conditions of sixth-month shorthold tenancies. First, there is the cost of access in itself. Most private landlords require a month's rent as deposit and then a further month's rent in advance. That means that with the help of friends or family prospective tenants must seek to raise perhaps £800. Having done so, if they can, there is still a second problem of meeting the cost of the rent. Housing benefit comes three or four weeks in arrears--that is assuming that it comes on time. Even so, now housing benefit does not cover the full cost of

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the rent in 40 per cent. of cases either because the rent is excessive or because the property is regarded as over-large for the tenant.

Further, the new regulations on housing benefit will mean that housing benefit will not cover the market rent for that property but only the local reference rent, which may be considerably lower. Yet we know that 80 per cent. of homeless families need housing benefit.

Put all that together and there will be a growing problem of homeless families who are unable to afford privately rented housing. We need such an amendment to ensure that they are not regarded by local authorities as intentionally or deliberately homeless if they refuse to accept such accommodation, which they cannot afford, or if they leave such accommodation, which they cannot afford, because of the cost of access to it and the cost of staying in it.

I know that the Government believe that if they cap benefit the price of accommodation will fall. The last time that they seriously did that, the opposite was the case. The Salvation Army surveyed the effects of the 1985 capping of bed-and-breakfast payments, whereby, instead of having a maximum by discretion of £110 a head per week, the amount was capped to £70. If the Minister's theory of market economics worked, the cost that bed-and-breakfast hotels charge would fall accordingly. There were something in the order of 780 bed-and-breakfast hotels and as a result of those changes by the Government thereafter only 382 were willing to continue to accept homeless people. Of those 382, only 60 brought their price down to £70 a week. The rest in fact raised their charges by 15 to 20 per cent. The result, as the Minister may know, was that local authorities had a crisis in bed-and-breakfast accommodation.

I hope we are wrong, but we fear that the same thing may happen this time and that capping costs merely takes the accommodation out of the market. It does not reduce its price because it is a landlord's market and there are other tenants who are anxious to rent the property. Therefore, we believe that currently there is and in future there will be a growing problem of people who are unable to afford access to privately rented accommodation or are unable to afford it thereafter. We want to ensure that, if they have to leave the accommodation or if they are given a list of addresses but when they go to inspect the accommodation they find that they cannot afford it, they are not thereby regarded as making themselves intentionally homeless. In all good faith, they cannot afford the rent. I beg to move.

Lord Mackay of Ardbrecknish: These amendments relate to affordability. It would clearly be wrong to assume that someone can continue to occupy accommodation, and therefore not be considered homeless, if he cannot meet the terms on which a tenancy was granted. An obvious case would be where he can no longer meet the rent himself--for example, as a result of a change in the rent--and the rent charged is above the local reference rent for that type of property, with the result that housing benefit is not necessarily

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payable in full. The local authority has a discretion (within limits) to top up the benefit, but may judge that that is not appropriate in the circumstances.

The order-making power that we are seeking under Clause 158 is intended to allow us to address such cases. We are reflecting on precisely how to use that power, and the range of cases it should cover. In that context, however, whether it is reasonable for a person to continue to occupy property is likely to cover a range of attributes, including whether the accommodation is of the right size and whether it is (where necessary) affordable for someone on housing benefit. The place to address affordability is in an order, provisions for which are in Clause 158. The more detailed issues raised by these amendments are not appropriate for the face of the Bill.

With the assurance that we will be addressing those issues in the orders we make under that clause, I hope the noble Baroness will feel able to withdraw her amendment.

Baroness Hollis of Heigham: That would be fine if I knew what the contents of the order were likely to be. In other words, can the Minister give us some indication to suggest that there is little distance between us? Though I would prefer it on the face of the Bill, I would have no choice but to accept what he says. Can he give us some indication of his thinking on the matter? Does he accept that, given that housing benefit does not cover, in 40 per cent. of cases, the full cost of rent let alone some of the other costs, that that will not be regarded as grounds for declaring that somebody has made themselves intentionally homeless and therefore the local authority has no responsibility towards them?

The test of excessive rent is an extremely tough one. If a couple without children seek to rent a two-bedroomed flat, that is regarded as excessive space and the housing benefit will cover only a portion of the rent of that property. If there is no one-bedroomed accommodation available and all they have is two-bedroomed accommodation and the couple seek to go into a two-bedroomed flat, by definition they will not receive housing benefit to cover their rent if they are on income support. They are therefore faced with the choice of going without accommodation, having that income support top sliced, getting into debt or being declared intentionally homeless. Can the Minister give us a sense of what his thinking may be and what the shape of the order may look like?

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