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Baroness Hanham: I wonder whether I may be anecdotal as the noble Lord, Lord Graham, was earlier. I want to test what the effect of the amendment would be against what is in the Bill.
In my borough of Kensington and Chelsea, for a significant amount of time we have had an extreme problem with crack dealers in housing estates. As a result of enormous effort, the Misuse of Drugs Act 1971 has been changed to make dealing crack a criminal offence.
Once the local authority has evicted a crack dealer from his premises because he has committed a criminal offence, which happens very quickly, why should the local authority spend any more time considering whether that person is entitled to housing? As I understand the amendment, it would move the test further along the line so people such as the crack dealer would have to be considered at a later rather than an earlier stage, when one might quickly draw the line under the consideration of whether they are going to be given housing.
Baroness Maddock: I understand what the noble Baroness, Lady Hanham, is saying about crack dealers, but crack dealers have families. We are worried about the families of crack dealers under current legislation. Because of one person, the needs of the rest of the family will not be considered.
Baroness Hanham: Most of the crack dealers we have found have been single, unaccompanied and loaded with other crack dealers in the premises. Some might have families and some may not, but there needs to be some balance between letting things roll on for too long and drawing the line at a much earlier stage. I am sure there are examples other than crack dealers which I cannot bring to mind at the moment. There should be an option to draw the line at the beginning.
Lord Falconer of Thoroton: The exchange between the noble Baroness, Lady Maddock, and the noble Baroness, Lady Hanham, identifies the issue here. The Bill as drafted allows local authorities to draw the line at the beginning of the process rather than considering a person's conduct later on at the allocations stage, as the noble Baroness, Lady Maddock, wants. That is the issue. What is the right approach?
There is concern in some quarters that the Bill would allow an authority to decide to treat someone as ineligible for an allocation by simply assessing their behaviour and not considering any other factors. I assure the noble Baroness that that is not the case.
[The Sitting was suspended for a Division in the House from 6.33 to 6.47 p.m.]
Lord Falconer of Thoroton: I was acknowledging that there was concern in some quarters that the Bill as drafted would allow an authority to decide to treat someone as ineligible for an allocation simply by assessing their behaviour without considering any other factors. Let me assure the noble Baroness, Lady Maddock, who was most concerned about this, that that is not the case. I will briefly go through the provisions. Section 160A(7) gives authorities a power to decide to treat individual applicants as ineligible for an allocation of housing. It applies only where a person—either the applicant or a member of his household—is guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority and in the circumstances at the time of the application he is unsuitable to be a tenant by reason of that behaviour. Where a local authority receives an application and has reason to believe that either the applicant or a member of his household has been guilty of behaviour that may make him unsuitable to be a tenant, there are a number of steps through which they have to go.
First, they have to satisfy themselves that there has been behaviour that falls within the definition of Xunacceptable behaviour". In others, there has to have been behaviour by the applicant or by a member of his household that would, if the applicant were a secure tenant, entitle the authority to a possession order under Section 84 of the Housing Act in relation to certain grounds. Those grounds are set out in Part 1 of Schedule 2, except Ground 8. They are fault grounds and include behaviour such as conduct that is likely to cause nuisance or annoyance and the use of the property for immoral or illegal purposes.
In considering whether a possession order would be granted in the circumstances of a particular case, the authority will have to consider whether, having established the grounds, the court would consider it was reasonable to grant a possession order. It has been established in case law that, when the court is deliberating, Xreasonable" means having regard to the interests of the public and the interests of the parties. So in deciding whether it would be entitled to an order, the authority will need to consider these interests and this will include all the circumstances of an applicant and his household.
That is stage one. Under stage two, having concluded that they would be entitled to an order, authorities will need to satisfy themselves that the behaviour is serious enough to make the person unsuitable to be a tenant of the authority. For example, the authority would need to be satisfied that, if a possession order were granted, it would not be suspended by the court.
Thirdly, the authority would need to satisfy itself that, in the circumstances, at the time of the application the applicant was unsuitable to be a tenant by reason of the behaviour in question. Taken together, those three criteria provide a pretty stiff test.
Only if satisfied in all three aspects may the authority consider exercising its discretion to decide that the applicant is to be treated as ineligible for an
allocation. In reaching a decision on whether or not to treat the applicant as ineligible, the authority will have to act reasonably, which means that it will need to consider all the relevant matters before it. Those will include all the circumstances relevant to the particular applicant, whether health, dependants or other factors. In practice, the matters before the authority will include the information provided on the application form.It is therefore important to bear in mind that it would be impossible for an authority to take a view on whether it would be entitled to a possession order without considering fully all the factors that a court would take into account in determining whether or not it was reasonable to grant an order. In reaching a decision as to whether or not to treat someone as ineligible, the authority must again consider all the relevant factors.
It is important that housing authorities are clear about the implications of these important provisions and, accordingly, I undertake to ensure that those issues are included in the statutory guidance that will be issued to accompany the Bill.
There is agreement that authorities should have the power to decide not to allocate where they are satisfied that the applicant is unsuitable to be a tenant—and there is agreement that the test of that should be the criteria set out in the Bill as drafted.
Let me say again that this has been a difficult balancing act to get right and a great deal of careful consideration has gone into the construction of the provisions in the Bill. I believe we have got them about right. If authorities are to have the power to decide not to allocate—on which there is a consensus—it is appropriate for that power to be framed in terms of eligibility and to be included in the section of the Bill which specifically deals with eligibility.
Where the authority comes to a decision that the applicant is unsuitable to be a tenant and will not be allocated accommodation, then that is not a matter of priority. In such a case, the question of what degree of priority should be given to the applicant does not arise. It would not be appropriate, therefore, for the power enabling the authority to decide not to allocate to form part of Section 167 of the 1996 Act, which deals with the scheme which authorities must have for determining priorities and procedures to be followed when allocating housing.
I hope Members of the Committee will agree that the best way to ensure that authorities act reasonably and look at all the circumstances of the case before deciding to treat an applicant as ineligible for housing is through the undertaking I have given to make this clear in guidance.
I therefore urge the noble Baroness, Lady Maddock, not to press her Amendments Nos. 19, 20, 22 to 25, 32 and 34.
Amendment No. 31 seeks to ensure that, in determining the priority and preference to be given to an applicant, an authority can take account of
behaviour which affects the applicant's suitability to be a tenant only if the behaviour was deliberate, wilful or negligent.An authority may have a large number of applicants who fall within the categories of applicants who must be given reasonable preference. In determining which among them should be given priority for an allocation, the authority may take a number of factors into account. The basis for determining priority will need to be made clear in the authority's published allocation scheme. The Bill sets out three factors which, among others, a scheme can include as factors which can be taken into account when determining priority. Those include any behaviour of a person or a member of his household which affects his suitability to be a tenant.
That will allow authorities to take account of both good and bad behaviour which may have been demonstrated by individual applicants. Bad behaviour might include unacceptable behaviour such as persistent but minor rent arrears, which is not serious enough to make an applicant unsuitable to be a tenant but, nevertheless, is a factor to be taken into account in assessing the level of priority that is deserved relative to other applicants. Another applicant, perhaps an existing tenant applying for a transfer, may have demonstrated that he or she is a model tenant. All other practice being equal, the authority may decide that the latter deserves more priority than the former.
The issue of what relative priority individual applications should receive for an allocation is a matter for the authority to decide, in accordance with the principles of its published scheme. It is right that that discretion, including decisions about how behaviour should be taken into account, should rest with local authorities. I therefore ask the noble Baroness not to press Amendment No. 31 when the time comes.
Government Amendment No. 33 is a minor drafting amendment. The Bill gives local housing authorities powers to take account of unacceptable behaviour when making decisions about applicants for the allocation of housing.
Clause 13 constructs a test of unacceptable behaviour serious enough to make the applicant unsuitable to be a tenant of the authority. Where an authority has decided that an applicant is guilty of such behaviour, it will have the power under Clause 13 to decide to treat them as ineligible for an allocation, or it may decide to treat them as eligible but not to give them any preference under Clause 15.
The policy intention is that the test of unacceptable behaviour should be exactly the same, whether as a basis for treating a person as ineligible or for deciding that he or she does not deserve to be given any preference. The qualification,
- Xby reason of that behaviour",
Amendment No. 33 merely inserts that qualification in new Section 167(2C)(b) to ensure that the provisions on unacceptable behaviour are clear and symmetrical. I hope that the Committee will feel able to agree to that technical amendment when the time comes.
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