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Lord Falconer of Thoroton: My Lords, the noble Baroness was clear about her concerns in Grand Committee and was clear again today. It may well be appropriate for me to reiterate the assurances that I gave in Grand Committee.

I therefore restate that the Bill as drafted would not allow an authority to decide to treat someone as ineligible for an allocation simply by assessing his behaviour and not considering any other factors. Proposed new Section 160A(7) will give authorities a power to decide to treat individual applicants as ineligible for an allocation of housing. It will apply only where a person—either the applicant or a member of his household—is guilty of unacceptable behaviour that is serious enough to make him unsuitable to be a tenant of the authority and, in the circumstances at the time of the application, unsuitable to be a tenant by reason of that behaviour.

Where an 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 which the authority must follow.

First, it must satisfy itself that behaviour has occurred which falls within the definition of "unacceptable behaviour"; in other words, the applicant or a member of his household must have behaved in a manner 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. The grounds are those in Part I 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 use of the premises 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 that it was reasonable to grant a possession order. In case law it has been established that, when the court is deliberating, "reasonable" means having regard to the interests of the public and the interests of the parties. Therefore, in deciding whether it would be entitled to an order, the authority would need to consider those interests, including all the circumstances of the applicant and his household. That is stage one.

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Under stage two, having concluded that it would be entitled to an order, an authority will need to satisfy itself that the behaviour is serious enough to make the person unsuitable to be a tenant of the authority. For example, it will need to be satisfied that, if a possession order is granted, it will not be suspended by the court.

Thirdly, the authority will 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.

Those three criteria provide a fairly stiff test. Only if it is 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. That means that it will need to consider all the relevant matters before it. They will include all the circumstances relevant to the applicant, including health, dependants and other factors. In practice, the matters before the authority will include the information provided on the application form.

Therefore, it is 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. Then, in reaching a decision as to whether or not to exercise its discretion and treat someone as ineligible, the authority must consider all the relevant factors.

I believe it is important that housing authorities are clear about the implications of these important provisions. Accordingly, I undertake to ensure that these matters are included in the statutory guidance, for which I shall take personal responsibility, and that they will be issued to accompany the Bill. I also agree that it is right that the application of this measure is monitored. The type of factors to which I referred in answer to an earlier question raised by the noble Baroness, Lady Maddock, will inform the way that that monitoring takes place.

I hope that noble Lords will agree that this is the best way to ensure that authorities act reasonably and consider all the circumstances of a case before deciding to treat an applicant as ineligible for housing. I hope that in the light of that, the noble Baroness will feel able to withdraw her amendment.

Lord Avebury: My Lords, before the noble and learned Lord sits down, can he tell me whether there is a database of cases where the courts have granted possession on grounds similar to those which are being considered by the local authorities to which local authorities can refer in deciding these matters? He said that they would have to consider whether the court would have granted a possession order if it had had such facts before it. If a local authority can refer to such a database and can see that in a certain set of circumstances the court has or has not granted a possession order, that will obviously be very useful.

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However, if there is no such database, and with the enormous variety of circumstances that might apply not to the applicant but to any single member of his household, how will the authority judge whether the courts would have granted possession in those circumstances?

Lord Falconer of Thoroton: My Lords, as in all issues relating to how a court will react, a large number of cases will have been decided by the courts. Not all those cases will be reported or accessible on a database. There are a large number of databases which refer one to decided cases in court, including those concerning housing, but they are not comprehensive. I know from my own experience that all county court decisions—that will be the relevant court—or Appeal Court decisions are not reported. However, databases exist to provide some assistance in relation to this matter. The more access there is to the widest possible range of decided cases, the better.

Baroness Maddock: My Lords, I am grateful to the Minister for his comprehensive response to my amendment. In view of the assurances that he has given me and his oversight of practice in this area, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [Applications for housing accommodation]:

5.15 p.m.

Baroness Hanham moved Amendment No. 18:

    Page 10, line 7, at end insert "and shall be entered in a register complying with the requirements of Schedule (Housing Applications Register) to this Act".

The noble Baroness said: My Lords, in moving Amendment No. 18, I shall speak also to Amendment No. 37, which contains a proposed new schedule. It is a matter to which I return following the Grand Committee. The abolition of the requirement to keep a housing register is something of a false dawn. As I said previously, few will mourn the passing of a register amounting to some 8,000 to 10,000 applications. However, there will still be an administrative need for a record to be kept of those applying for consideration under the allocation scheme.

While I recognise that there are varying degrees of pressure on housing across the country, it seems somewhat lax not to have any indication within the Bill that the freedom of release from the formal housing register brings with it requirements to record applications which are made and their outcome, even if that is only to say that there is no entitlement, no priority or no realistic possibility of housing in a defined period.

Monitoring and auditing of the housing position across the country will become infinitely more unreliable than it is already if there is no requirement to maintain administrative probity. My schedule in Amendment No. 37, of which I was quite proud—that

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is the reason why it has appeared again—gives the outline of how I consider the matter should be implemented. I beg to move.

Lord Filkin: My Lords, the Bill seeks to encourage authorities to move away from fixed registers and to consider more flexible ways of operating their allocation schemes which will enable them to offer more choice to those who seek a social housing tenancy. Amendments Nos. 18 and 37 would require the opening of a register of applications for allocation of accommodation; that is, they seek to lay down specific requirements as to how authorities keep records of the operation of their allocation scheme.

I understand the concern of the noble Baroness that all authorities should keep good records in order that they may be held accountable for their allocation decisions. In fact, it is inconceivable that any authority wanting to protect itself from a maladministration charge would not keep records of what happened in the course of an application made to it. Therefore, some form of list or register of applicants and decisions taken with regard to their applications is likely to be retained. However, I do not believe that it is right to prescribe in legislation the format of that record.

The Bill builds in safeguards to ensure that all applicants, including existing tenants who apply for a transfer, have their applications considered properly. It also ensures that applicants can obtain the necessary information that will allow them to assess how long they may have to wait for an allocation.

The Bill provides a sensible framework which gives individual authorities flexibility to construct their allocation scheme as they think best while providing safeguards that will ensure that reasonable preference is given to the categories of applicants most in housing need. It is for individual authorities to decide how best to conduct the detailed administration of their allocations.

In effect, the Bill specifies the ends that we wish to achieve through local authorities. But we want local authorities to be imaginative in doing so—to give advice and information and to develop choice-based letting systems—rather than simply being passive in the way that some authorities have been in the past, with waiting lists being constructed but with little happening thereafter. I do not believe that we need to tell them the means of fulfilling those goals; it would be potentially negative were we to do so. Therefore, I urge the noble Baroness to withdraw the amendment.

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