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Baroness Hamwee: As my noble friend Lady Maddock was speaking, it occurred to me that the Minister, almost above any other Minister on the government Front Bench, would not want to suggest that procedural difficulties should affect an applicant's access to justice. I hope that that argument is one that he will be able to dispose of.
Perhaps it might also be worth referring to access to legal aid. By definition, the people who would benefit from the amendment of my noble friend Lady Maddock would be seeking legal aid, but there would be no different criteria whether the application were made in the county court or the High Court.
6 p.m.
Lord Falconer of Thoroton: Every member of the Front Bench is united in their desire that there should not be procedural bars to justice, so I do not single myself out for any particular respect. The noble Baroness, Lady Maddock, explained the position very clearly. Can I, with equal clarity, indicate why at the moment we are not minded to accept the proposal made? It may be helpful if I remind Members of the Committee that there are two procedural stages open to an applicant who is dissatisfied with the decision made on his homelessness case.
First, under Section 202 of the 1996 Act, he has the right to request the authority to review its decision. Secondly, if he is dissatisfied with the decision of the authority on review, then the applicant has the right under Section 204 to apply to the county court on a point of law. Under the current provisions, applicants who wish to challenge an authority's decision not to continue to accommodate pending either a review by the authority or an appeal to the county court must seek judicial review of that decision in the High Court.
Applying to the courts to overturn an authority's decision should be a matter of last resort and should only be considered where it is clear that the authority has not made a proper decision. During the passage of this Bill's predecessor, then the Homes Bill before the general election, the Minister for Housing gave a commitment in another place to consider whether there was a case for giving the county court power to require an authority to accommodate an applicant pending an appeal to that court; that is, at the second stage of the procedural process. He gave that commitment in response to a new clause moved by the Member for Bath. He consulted the Lord Chancellor's Department and decided that there would be merit in providing such a power because of practical considerations involving court administration.
Those obvious considerations are at the second stage of the process. The county court is involved anyway. It is ridiculous to have the county court deciding on the principal point, but to have to go to the
High Court to determine whether the local authority is right not to continue to house the applicant pending the consideration of the matter by the county court. In short, the Government recognise that it does not make administrative sense for two different courts to consider different decisions about the same homelessness case at the same time.The previous Bill fell before the General Election, but a suitable clause, Clause 11, was included in the new Bill. It contained the provision to allow the county court to consider whether continued accommodation should be provided pending the second stage of the process by the county court.
The principle of judicial review by the High Court remains valid where applicants wish to challenge an authority's decision not to continue to accommodate, pending a review by an authority of the homelessness decision. That is at the first procedural stage, because at that stage there is no involvement of any court, so the problem of two courts considering the same issue does not apply. There is a difference between the first and second stages. In the second stage the county court is involved anyway, so it is obviously right for the county court to deal with that issue. The county court is not involved at the first stage and we strongly resist giving it the power to intervene in decisions by an authority not to continue to accommodate at the review stage, because in effect we are completely taking away the discretion from the local authority at that non-court stage to decide what to do while the review is going on. Unlike applications for judicial review, applications for county court are not filtered in any way; there is no permission or leave stage. The amendment would require the county court to consider every application made to it.
If the power to intervene in local authority decisions not to continue to accommodate an applicant pending a review were removed from the High Court to the county court, every case would have to be considered on its merits by the county court. Secondly, there would be a strong likelihood that the court would be minded to require the authority to continue to accommodate in just about every case, until the court had had the opportunity to consider the application properly. Having done that, it is unlikely to want to take any action that would result, directly or indirectly, in the applicant becoming homeless, pending its decision of the case.
Thirdly, the net effect would be a huge incentive for every homeless applicant who received a decision against his interests to ask for a review by the authority and to apply to the court for an order requiring the authority to continue to accommodate him. That would undermine the local authority's discretion to decide whether to exercise that power.
We appreciate the motives behind the amendment. It is different from the second stage of the procedure, where the county court is already involved. It would be likely to result in local authorities being compelled to house every applicant whose case they have just rejected. That would place a significant burden on the local authority in respect of a large number of cases in which it had decided that there was no priority.
While we understand the motives, we are at the moment not minded to accede to the amendment. I hope that the noble Baroness will consider carefully what I have said. It is an important issue, but we have put the procedural position on the right side of the line, because we also have to bear in mind the needs of the local authority and all the homeless people they are trying to house.
Baroness Maddock: I thank the Minister for his very full reply to a rather complicated amendment, although the principle is quite simple. Most of those who practise law in the area of homelessness and housing believe that this would be a very helpful amendment. The main argument that the Minister used towards the end was that we would get far too many cases and that local authorities would be required to house everybody who came up with a request for a review. My noble friend Lady Hamwee has already pointed out that many of the people we are talking about would have to satisfy the test of the Legal Services Commission because they would probably be applying for legal aid. This is a very stringent test, so the situation would not be as the Minister suggested it would be. There is ample evidence to show that the Government are unduly frightened about the number of cases that would come forward. I will look again both at my amendment and the Minister's reply. It is a complicated area; I am still convinced of the rightness of what we are trying to achieve but, given that we are in Grand Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee moved Amendment No. 18:
- After Clause 11, insert the following new clause—
The noble Baroness said: I am grateful to the Housing Law Practitioners Association for drawing this amendment to my attention. I mention it in part because it is proposing these changes from its own experience. My noble friend mentioned housing law practitioners during our debate on the previous amendment. However, that did not meet with any
The first part of the amendment is proposing an alteration to Section 188(3) of the 1996 Act. The eagle-eyed amongst Members of the Committee will observe that the difference involves inserting the word Xsecure". That will add to a power to continue to secure accommodation in the circumstances of Section 188(3). A similar provision is included in proposed paragraph (2) of the amendment, which will substitute for Section 204(4) of the 1996 Act. That would remove inconsistencies in the legislation which mean that housing authorities do not have the power to provide temporary accommodation for some applicants pending a challenge to a decision, whether by way of review or a county court appeal. I hope that the Minister can explain the inconsistencies. They appear to be as follows.
There is no discretion to provide accommodation from new, as it were, only to continue to provide it. If for some reason, therefore—and there must be many reasons—temporary accommodation has not been provided during the period between application and the initial decision, there is no power to provide it pending the review or the appeal. I have already mentioned my wish to see far wider powers in local authorities. The power of general competence seems to be a particular oddity if it is necessary to amend legislation in order to provide it. If it is required, however, let us take the opportunity to do it.
A further inconsistency is that there is no power to provide temporary accommodation pending a review of the duration of accommodation provided to an intentionally homeless household. Moreover, there is no power to provide temporary accommodation for a person who is threatened with homelessness pending review or appeal. I hope that the Minister can say that there is no need for these amendments because the powers are included elsewhere. That would be the happiest answer I might receive. I beg to move.
XSECURITY OF ACCOMMODATION FOR APPLICANT'S OCCUPATION
(1) In section 188(3) of the 1996 Act (interim duty to accommodate in case of apparent priority need), for XThe authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review." there is substituted—
XThe authority may secure or continue to secure that accommodation is available for the applicant's occupation pending a decision on a review of any decision under this Part."
(2) In section 204 of the 1996 Act (right of appeal to county court on point of law), for subsection (4) there is substituted—
X(4) The authority may secure or continue to secure that accommodation is available for the applicant's occupation—
(a) during the period for appealing under this section against the authority's decision, and
(b) if an appeal is brought, until the appeal (and any further appeal) is finally determined.""
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