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The Earl of Listowel: My Lords, it might be helpful if I were to give an example of the matters just dealt with by the noble Baroness, Lady Maddock, as there seems to be some concern about them.
A man approached Shelter for assistance. He was 17 and had been living with his father, with whom he had had a very difficult relationship. His father had made him leave their home several times in the past. On this occasion, the young man was on licence from prison and had to be resident at an address to avoid being returned to prison. The authority accepted that he was homeless but said that he did not have a priority need. That was despite guidance stating that
- "the Secretary of State would generally expect to find homeless . . . 16 and 17 year olds to be vulnerable and hence in priority need for accommodation".
A review of the authority's decision was requested, but the authority refused to provide accommodation pending a review. Shelter brought judicial review proceedings to require the authority to provide accommodation during the review. The authority subsequently issued its review decision, stating that it had re-examined the situation and found that the client was, in fact, owed a full housing duty.
I hope that I have given the example at the appropriate stage of our proceedings. As the noble Baroness, Lady Maddock, said, it is a very complex matter, and I am afraid that I may have misunderstood the particular provision.
Lord Falconer of Thoroton: My Lords, the point made by the noble Earl, Lord Listowel, was right on target. It demonstrated, did it not, that judicial review provided an adequate remedy in that example?
I shall try to be brief in dealing with the point made very clearly by the noble Baroness, Lady Maddock. I am afraid, however, that we still disagree on it.
An applicant who is dissatisfied with the housing authority's decision on his homelessness case has the right to request the authority to review the decision. If dissatisfied with the authority's decision on review, the applicant has the right to appeal to the county court on a point of law.
Under 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. The example given by the noble Earl, Lord Listowel, is relevant to that point. The provision provides an avenue of redress for applicants in the event that an authority does not make a proper decision; for example, by failing to give due consideration to all the circumstances, or perhaps failing to consider them at all. It is appropriate that the authority should have discretion whether to continue to accommodate applicants once it has completed its detailed enquiries and satisfied itself of the facts of the case.Amendment No. 15 would give the county court a power to intervene in decisions by a housing authority not to continue to accommodate a homeless applicant pending a review. However, applying to the courts to overturn an authority's decision should be a matter of last resort and should only be considered when it is clear that the authority has not made a proper decision. I believe that 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 the authority of the homelessness decision—that is, at the first procedural stage.
The Government are concerned to ensure that local authority discretion in these matters is not completely undermined. That is my reason for resisting the move to give the county court the power to intervene in the decision by an authority not to continue to accommodate at the review stage.
The Government believe that if the power to intervene in local authority decisions not to continue to accommodate an applicant pending a review were moved from the High Court to the county court, that would have various consequences. First, the county court would be duty bound to consider every application that was made to it. Secondly, there must 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 the opportunity properly to consider the application. Having done that, the court is very unlikely to want to take any action that would result, directly or indirectly, in the applicant becoming homeless.
I was not sure but I thought that the noble Baroness said that applications for injunctions pending the hearing of judicial review invariably led to the injunction being granted once leave had been given. If that experience were taken to the county court, where there is no filter, could not the same possibly occur? In effect, one would in practice take away discretion from the local authority.
5 p.m.
Baroness Maddock: My Lords, perhaps I was not being very clear. If I remember rightly, my argument was that there comes a point at which the local
authority gives in, as it were, and therefore does not need to carry on. That is why the situation probably would not arise.
Lord Falconer of Thoroton: My Lords, if one gives the county court the right to intervene in the decision about whether one should house someone pending a review, and the invariable practice of the court became that it would always intervene to secure continuing accommodation pending a review, discretion about whether or not to continue to house pending the review would, in effect, be taken from the local authority and given to the court. That would mean that although there was a category of people whom the local authority thought should not be housed, accommodation would nevertheless need to be provided for them. What impact would that have on those with needs that were greater than those of the people whom the local authority had just assessed as not being sufficient to justify continuing housing?
The third consequence would be that the net effect would be an incentive for every homeless applicant who received a decision against his interests to ask for a review by the authority and apply to the court for an order requiring the authority to continue to accommodate him until the review was completed, thus completely undermining the local authority's discretion to decide whether to exercise its power.
Local authorities have an immediate duty to secure accommodation for new applicants where there is reason to believe that they are homeless and in priority need, until the authority has had a chance to look into the circumstances and to satisfy itself whether there is indeed homelessness, whether that homelessness was caused by the applicant and whether there is priority need.
It is right that authorities have that immediate duty and that applicants should have the right to ask the authority to review any decision that goes against their interests—for example, that they do not have priority need or that they became homeless intentionally. However, it is important that authorities themselves should have the discretion to decide whether there is good reason to continue to accommodate applicants during a review and that that discretionary power is not undermined by the possibility of intervention by the courts on a routine basis.
I earnestly ask the noble Baroness to consider what we have said. Our approach is not the result of penny-pinching but because we think that it is the right approach. I therefore urge her to withdraw her amendment.
Baroness Maddock: My Lords, I thank the Minister once again for a very full answer. He will be aware that the Housing Law Practitioners Association strongly supported the approach, as did Shelter. People would not take such cases forward unless they had a very good case because they would not get legal aid or funding. Part of what the Minister said would not
happen. However, I thank him for making even clearer his reasons for disagreeing with me. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 12 [Application of Part 6 of 1996 Act to existing tenants]:
Clause 13 [Abolition of duty to maintain housing register]:
Baroness Maddock moved Amendment No. 17:
- Leave out Clause 13.
The noble Baroness said: My Lords, I hope that noble Lords will forgive me for pausing for a moment. I thought that I should have a nice little rest while the noble Baroness, Lady Hanham, moved Amendment No. 16. In relation to housing, it always seems to be my role to move amendments quickly one after the other.
The amendment involves a matter that we raised in Grand Committee. Significant concerns have been expressed about the Bill's provisions relating to unacceptable behaviour, which makes someone unsuitable to be a tenant. In Grand Committee, the Minister made a strong statement and set out how he expected local authorities to implement the provisions. He also highlighted several factors that must be considered by an authority, and that will be incorporated into guidance. We welcome that statement and the correspondence I have had with him on some of those matters.
We have already raised the relevant issue today. Given the poor record of some local authorities in following guidance, the application of the provisions is likely to be the subject of legal challenge when the legislation is enacted. It is important that there is no doubt about the Government's intentions. I hope that the Minister will state that he will oversee the wording of the guidance and closely monitor practice, including any legal proceedings that are brought under the provisions to ensure that the intentions that he has set out are met.
Our concerns about unacceptable behaviour are that the unacceptable behaviour test could go much wider than anti-social behaviour and would allow local authorities to apply it to a wide range of other situations, particularly where rent arrears are concerned. The Bill will give authorities the discretion not to house tenants in circumstances other than those involving anti-social behaviour. That is extremely common under current legislation.
Local authorities routinely apply for possession orders when they are not entitled to them. In 2000, 150,000 possession actions were taken by social landlords, the vast majority of which were for rent arrears. If such a landlord takes proceedings as far as the court, it is presumably satisfied that it is entitled to a possession order. However, of those 150,000 cases, only 65 per cent resulted in any order being made, of which only 18 per cent resulted in an outright order. In more than 80 per cent of cases where social landlords presumably assumed that they were entitled to a possession order, the court ruled that they were not.
It is important that housing and support needs are taken into account at this stage. People with problematic histories, such as rough sleepers and ex-offenders—we have already discussed them today—many of whom have been evicted from previous tenancies, may fall foul of the unacceptable behaviour provisions. Resettlement work and the policy on homelessness more widely could be undermined. I refer to the work of the Rough Sleepers' Unit in that regard.
It is also important to consider the way in which the provisions will be interpreted and applied at the local level. I hope that the Minister will give as firm a statement as he gave in Grand Committee. I beg to move.
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