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Earl Russell: My Lords, my amendment and that of my noble friend Lady Hamwee work well together. Mine was meant to be the advance reconnaissance party, sent out to probe the enemy's advance. I probed and found it non-existent. My noble friend's amendment was meant to be the main body of our forces, brought along to go through the gap.

I asked the Minister what the clause would mean in practice. The Minister told me, if words mean anything at all, that he really does not know. Immediately afterwards he told my noble friend that her amendment is unnecessary. He can perfectly well have one of those propositions; I do not see how he can have both. If he does not know what will be done under the clause, how can he know that my noble friend's amendment is unnecessary.

I thought the Minister might make a great virtue on this amendment of not wanting to be prescriptive. It is strange how eager the Government are to be prescriptive when it is a matter of stopping other people from doing things and how reluctant they are to be prescriptive when it may be a matter of offering some urgently needed help. We on these Benches take the duty to supply advice very seriously. My honourable friend Mrs. Maddock in another place was responsible for strengthening the provision before us. I am glad that she did so. We would like to do more of this. We would like real advice to be available and, as my noble friend said, we would like that advice to be independent. I do not see that we have got that here.

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I am sure that my noble friend will want to think about what she will do with her amendment at the next stage of the Bill. However, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Clause 172 [Application for assistance]:

Earl Russell moved Amendment No. 40:

Page 104, line 41, leave out from ("accommodation") to end of line 44.

The noble Earl said: My Lords, this is another probing operation. It deals with the requirement to offer assistance in obtaining accommodation. Again, I tabled a probing amendment to leave out the requirement in the hope of persuading the noble Earl to tell me exactly what it means.

"Assistance" can mean all kinds of things. It can mean anything from what I quoted just now down to a detailed list of addresses, rents and so forth. Of course, as the noble Lord, Lord Swinfen, reminded us earlier, assistance for people with special needs may have to be extremely specialised and well informed if it is to work. Indeed, for people with limited mobility the need for advice to avoid them going all around The Wrekin looking in the wrong place may be extremely important.

We need to know what is meant by "assistance" before we can decide whether it is worthwhile. Both advice and assistance, if they are to soften the apparently harsh outlines of Part VII of the Bill--Ministers have often urged us to think that they do soften those harsh outlines--will need to be reasonably precise. One cannot soften things with hot air. I beg to move.

Baroness Hamwee: My Lords, I wish to speak to this group of amendments. The noble Lord, Lord Swinfen, mentioned earlier that there are some interesting groupings: this may be one of them.

Amendment No. 41 stands in my name and that of the noble Baroness, Lady Hollis of Heigham. It is an amendment to Clause 173 proposing a presumption of eligibility. It proposes that the authorities, in establishing eligibility under Clause 174 which deals with persons from abroad, shall,

    "satisfy themselves, if the applicant is eligible for assistance, whether any duty, and if so what duty, is owed to him under the following provisions of this Part".

As drafted the Bill allows authorities to make such inquiries as are necessary to satisfy themselves whether a person is "eligible for assistance". It will be based on immigration status. Other noble Lords have far more experience than I do of the arcane provisions of this part of the law. It is enough to say that it is complex and, having taken part in the spectator sport of the debate on the application of certain provisions, it is certainly safe to say that housing officers are not likely to find it straightforward to apply.

They cannot be expected to be familiar with immigration law and practice. The applicant's immigration status will be a major factor. The groups who will be excluded include, of course, illegal entrants, people given temporary admission and those given

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limited leave on the basis of having no recourse to public funds; people who fail the habitual residence test, as well as the asylum seekers. The experience of the habitual residence test in housing and income support cases suggests that the test is applied in different ways in different authorities and within authorities. This is a matter that has been referred to at an earlier stage of this Bill. The factors to be assessed include the length and continuity of residence, future intentions, employment prospects and others. As I say, it is not straightforward.

The amendment is not a weaker test. It proposes that unless there is full evidence of ineligibility based on fact, the local authority cannot refuse assistance. It may be more onerous to establish ineligibility, but that will only arise in certain cases because the majority of applicants will be eligible. It differs from the proposed test where the authority has to satisfy itself that the applicant is eligible and therefore would have to subject every applicant to the test. The test that this amendment proposes would ensure that people are not refused assistance where they are eligible, but would achieve what I understand to be the Government's intention of excluding people who are not eligible. It is particularly important in that the amendment would avoid the scope for discrimination, which would almost certainly arise under the current test where housing officers need only satisfy themselves about a person's status.

8.30 p.m.

Lord Mackay of Ardbrecknish: My Lords, I have made clear on a number of occasions that the Government attach great importance to ensuring that persons from abroad who do not have a valid claim to assistance under the homelessness legislation should not have access to it. As far as that assistance is concerned, it is pretty clearly explained in Clause 172. Just before the portion which the noble Earl would like to be removed from the Bill through his amendment, the clause refers to,

    "'assistance under this Part' means the benefit of any duty under the following provisions of this Part relating to accommodation or assistance in obtaining accommodation".
So the assistance that we are referring to is the assistance which is described in the rest of Part VII of the Bill.

What we are attempting to do in this part of the Bill, and in one or two other parts of the Bill still to be considered, is to ensure that those who do not have a valid claim for assistance under the homelessness legislation should not have access to it. Therefore, it will be necessary for authorities to make sure that applicants are eligible for the assistance they seek. That is why the Bill is drafted as it is. Clause 173(1) requires authorities,

    "to satisfy themselves whether [an applicant] is eligible for assistance".
This is a prerequisite if we are to be sure that costly assistance provided at the expense of the national taxpayers and the local council taxpayers is not exploited by those who are not entitled to it.

Amendment No. 41 would undermine this aim by removing the requirement for authorities to satisfy themselves whether applicants are eligible for assistance

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under Part VII. Indeed, authorities would need only to make such inquiries as were necessary to establish whether applicants were ineligible for assistance. That changes the onus.

It might be argued that the effect of the amendment is a little different from what is currently drafted in the Bill. In that case your Lordships may wonder why we should be invited to make this change since I do not believe that it clarifies the authority's duty in this area. I believe that, if anything, the amendment seems to replace what is a very clear provision with something which is much more vague and, consequently, it is unhelpful.

Some of your Lordships have previously expressed concern that housing authorities will find it onerous to have to consider a person's eligibility, which in effect will mean probing his immigration status. If I understood the second contribution from the Liberal Democrat Benches from the noble Baroness, Lady Hamwee, that is what she was discussing, at least in part.

I have said on a number of previous occasions that authorities already have to take into account the immigration status of homeless applicants following the Court of Appeal's decision in 1993 in the Tower Hamlets case. That concerned applicants who had entered the country illegally or who had overstayed their leave to remain. No duty under the homelessness legislation is owed in either case. Following that decision, my right honourable friend the Secretary of State for the Environment issued a revised homelessness code of guidance to local authorities concerning applications from persons outside the United Kingdom, including a model screening procedure for making inquiries about immigration status in a sensitive and non-discriminatory way. Indeed, I believe that I have spoken at greater length about the revised homelessness code on previous occasions.

That guidance also makes clear that information about an applicant's immigration status can be obtained by local authorities from the Immigration and Nationality Department at the Home Office, if that is necessary. We intend to issue a revised guidance on handling these aspects of homelessness applications when the provisions in Part VII come into force. It is important that authorities are under a clear obligation to determine whether a homeless applicant is eligible for assistance as part of their inquiries to satisfy themselves whether any duty is owed under Part VII.

Amendment No. 41 would undermine the provisions in the Bill which provide for that. Amendment No. 40 would remove the definition of "eligible for assistance" in Clause 172. As I have already said, the concept of eligibility is an important one. It is a thread which runs right through Part VII of the Bill. The removal of the definition would be neither helpful nor desirable. With that explanation of how the system will work, and perhaps the reference to some other speeches that I have

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made both on this Bill and the Asylum and Immigration Bill, I hope that the noble Baroness and the noble Earl can withdraw their amendments.

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