| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Hanham: My Lords, I was not going to intervene on the amendment, but I have been moved to do so by the recollection of my time as a housing chairman. I found that it was important not to allow too much time for a decision. There will always be more priorities in London than housing accommodation available. If somebody sits on an offer for four, five or six weeks and is allowed any amount of time, they may prevent somebody else making a decision and getting a property that they want. The question is how the word "reasonable" is interpreted. I have heard an almost infinite number of debates in this Chamber on that subject. There is a real problem with people having too long to make a decision and others being put in jeopardy as a result.
Lord Avebury: My Lords, I cannot help pointing out that, once again, the noble Baroness is trying to fetter the discretion of local authorities. Surely responsible local authorities are capable of deciding what is reasonable. The word is very common in statute. I am sure that they would not have any difficulty and that they would not allow those offered housing to take so many weeks to respond that they deprived others of the accommodation.
Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Maddock, says that sometimes the period is too short and the noble Baroness, Lady Hanham, says that sometimes it is too long. Plainly, the period needed will differ from circumstance to circumstance. A reasonable time will have to be given.
That is the current position and no amendment is required to say that. There is already an implicit legal duty to ensure that applicants have a reasonable time to consider a final offer of accommodation under Part 6 of the 1996 Act. That includes allowing a reasonable period for final offers to be considered. That duty of reasonableness can be discharged only if account is taken of the applicant's particular circumstances and the wider considerations.I agree that it is important that authorities should act reasonably, particularly when making final offers of accommodation, as they have the potential to bring the homelessness duty to an end, whether accepted or refused. To place the requirement to act reasonably for final offers on the face of the legislation is superfluous and might even lead to the incorrect assumption that a reasonable period need not be offered in respect of any other offer. I am happy to reiterate the commitment that I gave in Grand Committee that a clear reminder will be given to authorities in statutory guidance—to which they must by law have regard—that they must allow a reasonable period for final offers to be considered. In the light of that, I hope that the noble Baroness will feel able to withdraw her amendment.
In Committee, the noble Baroness, Lady Hanham, expressed concern that local housing authorities should not be able to bring the main homelessness duty to an end with a qualifying offer of an assured short-hold tenancy with a private landlord until it was absolutely clear that the applicant had understood the written statement that explains that he has no obligation to accept the offer and that if he accepts it the homelessness duty will end. In emphasising the importance of real understanding, she had the support of the noble Lord, Lord Brooke, and the noble Baroness, Lady Maddock. Amendment No. 13 would provide that the applicant must acknowledge that he has either read or had read to him the statement.
We thought about the issue and decided that the critical point in what the noble Baroness said—the point that had the support of other noble Lords—was that the applicant must confirm that he or she has understood the statement. That may involve him reading the statement himself or having it read to him by someone else, but it might also include, for example, translating the statement into another language or explaining to the applicant, step by step, the effect of his acceptance of an offer.
I suggest that the solution is that it is unnecessary to refer on the face of the Bill to the means by which an applicant has come to understand the content of the statement. All that is needed is that the central requirement that he has understood it is specified. Our Amendment No. 12 would achieve that and would simplify the existing provision in the Bill. It would have the additional benefit of emphasising the key requirement that the applicant has understood the statement. I therefore commend Amendment No. 12 to the House. It is intended to deal with the point that gained widespread support around the Committee. I therefore hope that the noble Baroness will not move Amendment No. 13 when the time comes.
4.45 p.m.
Baroness Hanham: My Lords, before the Minister sits down, I shall certainly not move Amendment No. 13. I am grateful to him for accepting that there was room for improvement in the sense and sensitivity of that aspect. I am glad that he has accepted this small but important change.
Baroness Maddock: My Lords, I thank the Minister for his comments. We pursued the issue in Grand Committee. I am pleased with what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton moved Amendment No. 12:
- Page 5, line 25, leave out "read and"
On Question, amendment agreed to.
The Deputy Speaker (Baroness Hooper): My Lords, because Amendment No. 12 has been agreed, Amendment No. 13 is pre-empted and therefore cannot be called.
Clause 9 [Abolition of duty under section 197]:
Baroness Maddock moved Amendment No. 15:
- After Clause 10, insert the following new clause—
The noble Baroness said: My Lords, this is another amendment that we discussed at some length in Grand Committee. Although the Minister has been very helpful in correspondence and has tabled amendments that cover some of our concerns, I regret that this was not one of them, so I shall pursue the issue once again.
We believe that Amendment No. 15 would increase access to justice by providing homeless applicants with a right to appeal to the county court against the decision of a local housing authority not to accommodate him or her during the review of that decision. Currently such appeals are heard in the High Court.
The Government have accepted that, at the subsequent stage at which an applicant can appeal the review decision on a point of law, the equivalent power to order an authority to provide accommodation should lie with the county court. An amendment has been included in the Bill to achieve that objective, and Amendment No. 15 mirrors that amendment.
When we discussed the issue in Grand Committee, the Minister had four main arguments against the new clause. The first was that it would interfere with local authorities' discretion. He said, secondly, that there is no filtering process in the county courts, so that there would be an influx of unmeritorious applications and applicants would be encouraged to bring vexatious cases. He argued, thirdly, that cases should be brought only in exceptional circumstances, and that judicial review in the High Court is therefore the appropriate legal remedy. He said, fourthly, that giving the same power to the county court at the subsequent appeal stage makes administrative sense, although it seems that the same logic does not apply at the review stage.
When I was a Member of the other place and we were considering the Housing Act 1996, Labour Members pressed much more wide-ranging amendments on the issue than I am proposing in Amendment No. 15. I suspect that I supported them in those amendments. I am therefore somewhat disappointed that the Government are not continuing the line that they thought was right in 1996.
I shall deal with the Minister's four objections, the first of which was on local authority discretion. We believe that the amendment does nothing to increase the presumption that local authorities should provide accommodation. It leaves existing relevant statutory powers precisely as they are; it would merely transfer the route of appeal, if an authority refuses to provide accommodation, from one court to another. We also do not believe that it would lead to a large number of unmeritorious cases. The argument that doing this would interfere with local authority discretion therefore simply does not stand up.
The Minister dealt, secondly, with the need for a filtering process, which is perhaps the most important point. He argued in Grand Committee that judicial review procedure provides a filtering process that is not present in the county court. Currently, when a decision not to accommodate during a review is challenged, an application is made to the High Court for permission to apply for judicial review and for an injunction to accommodate pending the outcome of that review. If the court is satisfied that there is a case to answer, permission and an injunction will be granted, and the full judicial review hearing will be listed. At that point, the overwhelming majority of authorities will reverse their original decision and agree to provide accommodation after all. I am grateful to Shelter for informing me that its legal team is not aware of any examples in which the foregoing has not been the case.
Although it is right to say that procedures differ in that there is no formal permission stage in the county court, the most important point is that, in practice, the principles that would be applied by the court in deciding the case would be exactly the same. Those were set out in the Court of Appeal's judgment in R v London Borough of Richmond. They also represent a stringent test in deciding whether accommodation should be provided. It is difficult to see how the new clause would provide an incentive to bring unmeritorious cases as it does absolutely nothing to encourage people to think that they would be successful. Therefore, in practice, we do not believe that the new clause would lead to many more cases.
The Minister's third point in Grand Committee was that challenges should be brought only in exceptional circumstances and that the appropriate legal remedy is in the High Court. I agree that applications should be made only when there is a strong case. However, the Government's argument seems to be that the power to require an authority to provide accommodation should remain in the High Court in order to keep the number of applications down. We believe that judicial review is a remote and inappropriate remedy for homeless people, and that current arrangements prevent them from exercising their legal rights effectively when they have a strong case. I think that that point is particularly important. Despite guidance, local authorities rarely provide accommodation during the review process, even when the applicant has a strong case.
The Minister's fourth point was on simplifying administration. He argued that giving the parallel provision to order an authority to accommodate an applicant at the subsequent appeal stage would simplify the process as the appeal itself is already held in the county court. We believe that similar arguments can be applied in relation to the review process.
I have spoken to the amendment at some length, and I spoke to it in Grand Committee. I believe that the Minister understands our objective in the matter. We have also tried to answer the points that he made in Committee. I therefore hope that, today, I shall receive a slightly better response from him on this rather complicated amendment. However, it has to be technical because of the very nature of the issues that it addresses.
"SECTION 202: REVIEWS
After section 202 of the 1996 Act (right to request review of decision) there is inserted—
"202A SECTION 202: REVIEWS
(1) This section applies where an applicant has the right to request a review of a decision by an authority or authorities under section 202.
(2) If the applicant is dissatisfied with a decision by the authority—
(a) not to exercise their power to continue to secure that accommodation is available for the applicant's occupation pending a review under section 188;
(b) in a case where the authority have secured that accommodation is available for the applicant's occupation under section 190(2)(a), to cease to secure that accommodation is so available before the time available to the applicant to bring an appeal under section 204 has expired (or, if sooner, the day on which an appeal is brought by the applicant);
(c) not to exercise their power to secure that accommodation is available for the applicant's occupation pending a review, under section 200(5); or
(d) to exercise their power under either section 188 or 200(5) for a limited time ending before the time available to the applicant to bring an appeal under section 204 has expired (or, if sooner, the day on which an appeal is brought by the applicant) or, in either case, to cease exercising their power before that time,
he may appeal to the county court against the decision.
(3) An appeal under this section may not be brought after the time available to the applicant to bring an appeal under section 204 has expired (or, if sooner, after the date on which an appeal is brought).
(4) On an appeal under this section, the court—
(a) may order the authority to secure that accommodation is available for the applicant's occupation until the time available to the applicant to bring an appeal under section 204 has expired (or such earlier time as the court may specify); and
(b) shall confirm or quash the decision appealed against,
and in considering whether to confirm or quash the decision the court shall apply the principles applied by the High Court on an application for judicial review.
(5) If the court quashes the decision it may order the authority to exercise any of the powers mentioned in subsection (2) in the applicant's case for such period as may be specified in the order.
(6) An order under subsection (5)—
(a) may only be made if the court is satisfied that failure to exercise the power in accordance with the order would substantially prejudice the applicant's ability to pursue the review against the authority's decision in his case;
(b) may not specify any period ending after the time available to the applicant to bring an appeal under section 204 of the Act has expired.""
Next Section
Back to Table of Contents
Lords Hansard Home Page