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Baroness Dean of Thornton-le-Fylde: I find the amendment not only woolly but almost undeliverable. It would make available to any interested party—and we are talking about clearance areas, which are always controversial—reports that would probably cost a great deal of money to draw up. What about the financial impact on the local authority if hundreds of people want information? As worded, the amendment means that the local authority would have to give any report to any interested party. Who will decide who is an interested party? That is a potential conflict. Or how does one prove that an oral request by telephone was made? The amendment's intention is good, but not only is it woolly, it would be damaging to the Bill.

Lord Selsdon: I am confused, but happy to be confused at a higher level. It is easy to define interested parties under law. It is easy to consider what currently happens in the planning world. When a planning application is made, an announcement is made and interested parties can consider it. Little notices go up on lamp posts and residents' associations or interested parties often get together and may define themselves. It is only a question of defining "interested parties", which would not be difficult.

Lord Hanningfield: We seem to have had a great deal of debate on the issue. In response to the noble Baroness, Lady Dean, local authorities have to respond in considerable detail to planning applications. Many planning applications are controversial, particularly when one wants to build on areas and neighbourhoods where people do not want building. Planning authorities receive hundreds of requests for information and detail about planning applications which they cannot refuse. This would be no different.

I accept the comments of the noble Baroness, Lady Hamwee, and I thank the Minister for his answer because it offered a way forward. He rightly said that I am involved in Essex County Council and that it is not the housing authority. Between now and further stages of the Bill, I would like to consult my colleagues on housing authorities in local government and see if we can come back with a better suggestion. The Minister said that if we talk to local government about it we might come back with a solution that we could all accept about how and to whom the information will be made available. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.
 
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Clause 5 [Category 1 hazards: general duty to take enforcement action]:

[Amendment No. 16 not moved.]

Lord Hanningfield moved Amendment No. 17:


"(h) serving a deferred action notice under section 86 of the Housing Grants, Construction and Regeneration Act 1996 (c. 53) (unfitness for human habitation etc: party to improve enforcement procedures) as specified in the Housing (Fitness Enforcement Procedures) Order 1996 (S.I. 1996/2885)."

The noble Lord said: Both Amendments Nos. 17 and 20—which is in the name of the noble Baroness, Lady Maddock—should be seen as consequential to the removal of Clause 50. I will therefore comment on why we believe the clause is unnecessary. The minded-to procedure was introduced by the last government as a measure of deregulation. Its repeal is now proposed by the present Government as a measure of deregulation.

The procedure was introduced under Sections 81 to 86 of the Housing Grants, Construction and Regeneration Act 1996 as a deregulatory measure to save costs and avoid formal regulatory action being taken when it could be avoided. It was the answer to widespread concerns by landlords that local authorities were proceeding immediately to service of formal notice.

Under the minded-to procedure, before serving a formal notice the local authority must serve a notice of its intention to do so and give the landlord the opportunity to object and make representations. This includes a right for the landlord to appear in front of an officer appointed by the local authority to make representations before any informal action is taken. This procedure can be overridden in urgent cases.

Experience has shown that the procedure has worked well. It removes a source of friction between local authorities and landlords. It gives the landlord an opportunity to negotiate with the local authority. More time may be needed to do the work or it may be agreed that substitute works are satisfactory or indeed a particular item may not need to be done at all. In the majority of cases in response to the minded-to notice the landlord has given an undertaking to do the work so as to avoid service of formal notices.

The landlords' association in Leeds—the Leeds Property Association—has had direct experience of the operation of the procedures and they have worked well in practice. The ODPM has argued that the enforcement concordat provides an alternative, but that is only guidance from central Government and not binding in law. In any case, particularly in relation to HHSRS there will be a mandatory duty under primary legislation to serve notices. There is a mandatory duty to serve notice where a category 1 hazard exists, under Sections 5(2) and (3). The retention of the minded-to procedure would allow less formal procedures to be adopted in the first instance.

The serving of a formal notice attracts a fee of up to £300. The imposition of fees of this magnitude will lead to hostility between landlords and EHOs. The
 
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responsible landlord will say, "If you had only written to me or telephoned me about this I would have dealt with it straightaway". This is the very reason that the minded-to procedure was instituted in the first place.

The Bill rightly contains, in Schedule 5, Parts 1 and 2, a consultation procedure to enable representations to be made before an HMO licence is issued, varied or refused, Why, therefore, cannot a similar procedure be retained for the service of notices especially those under Part 1 of the Bill, in respect of the HHSRS. If there is no preliminary procedure a landlord served with a notice may well have to make a protective appeal to the residential property tribunal if he contests certain aspects of the notice. There are strict time limits for such appeals. Although there is power for the tribunal to extend the time for appealing there is no guarantee of this. Unnecessary appeals may be needed simply to protect the landlord's position.

Formal service of a notice automatically sets the landlord in confrontation with the local housing authority, whereas the minded-to procedure enables good relations to be maintained so that the landlord can work with the authority to tackle a problem. If a landlord fails to take remedial action the option of serving a formal notice remains, although in most cases that would not be required. Abolishing the minded-to procedure is an unnecessary piece of heavy-handed regulation that is not conducive to creating a constructive atmosphere in which landlords and local authorities can co-operate.

Amendments Nos. 17 and 21 are consequential to the removal of Clause 50. I beg to move.

Baroness Maddock: I have also put my name to the amendment and to the question whether Clause 50 stand part of the Bill. I have also put my name to Amendment No. 20, which is exactly the same as Amendment No. 17, but to a different clause.

I support the comments of the noble Lord, Lord Hanningfield, and, indeed, we have both been heavily lobbied by the Residential Landlords Association, which makes some important points. If we try to regulate the private sector we need to work with landlords. I am sure that the amount of bureaucracy with which local authorities will have to deal as a result of the Bill will be greater. Therefore anything that we can do to cut down on that bureaucracy is important.

We know that the minded-to procedure has worked and I know that the Government believe that the enforcement concordat provides a good alternative. It was part of the explanation that we were given at a session with the Minister and departmental officials. Nevertheless I should like to hear a little more from the Minister about why he thinks that it is a reasonable replacement for the minded-to procedure that has
 
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worked so well. I hope that he can persuade me that the new procedure will work. Otherwise, we should pursue this matter on behalf of landlords.

Lord Bassam of Brighton: Clause 5 imposes a general duty on a local authority to take the appropriate enforcement action in relation to a category 1 hazard existing on residential premises. Authorities may select the appropriate enforcement action from the options provided in subsection (2). It operates somewhat like a menu. If the intention behind Amendment No. 17 is to retain the minded-to procedures—which is the intention of both noble Lords—the amendment is defective. The amendment attempts to add deferred action notices under Section 86 of the Housing Grants, Construction and Regeneration Act 1996 to the menu of options open to an authority with housing responsibilities to deal with a category 1 hazard. Deferred action notices are in fact provided for under Section 81 of the 1996 Act. Section 86 deals with what are known as "minded-to" notices.

This is a pre-notice procedure in which the authority must give the reasons for its proposed action and it allows the person served with the notice the opportunity to make representations. We have consulted twice on the repeal of the minded-to notices—first, as far back as 1998 in a paper on changes in principle to the fitness standard and again in a paper in 2001 on the detailed proposals for the HHSRS procedure. At that point there was broad support to remove them. I am aware that there are still those who would retain those procedures.

Repeal of the minded-to procedures is in part a deregulatory measure. It was seen as costly and bureaucratic and a potential delaying tactic by owners who wanted to stall the improvement of their property. It is unnecessary where informal procedures are already in place. As the noble Baroness, Lady Maddock, and the noble Lord, Lord Hanningfield, said, we have encouraged authorities to sign up instead to the enforcement concordat. The great majority have done exactly that. The concordat commits authorities to good enforcement practice, including consultation with those affected by their enforcement powers, providing information and discussing compliance failures. The minded-to procedures are unnecessary because of the success of the concordat. This is why the Government have long advocated their repeal.

I should declare an interest because I have a feeling that in my earlier life in the Local Government Association I was partly responsible for encouraging the development of concordats. I recall that I may even have attended the signing ceremony in March 1998—although I should not wish to be pressed on that. I certainly remember the concordat process and I had the impression at that stage that local authorities preferred the concordat—with its degree of informality, its pre-consultative format and an agreement to engage with those affected by enforcement action—rather than having to go through what was sometimes seen as the activation of a pre-enforcement process being used just to delay appropriate enforcement action.
 
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For those reasons, we feel unable to accept Amendments Nos. 17, 20 and 21, which have a similar effect.

The noble Baroness, Lady Maddock, wanted to be persuaded. Perhaps I should make a final point. Over time we have encouraged local authorities to sign up to the concordat. We have been impressed by their coverage. The statistics suggest that some 96 per cent of all central and local government organisations with enforcement functions have adopted the enforcement concordat. So its coverage is almost universal. As a result of that success we do not think that the minded-to process has any great merit and we want to see this element of deregulation because it reduces bureaucratic burdens on local authorities. That would be to local authorities' benefit and would reduce burdens on them because we want them to act in a more precise way. It is perhaps ironic that both opposition Front Benches are urging us to retain something which we see as a bureaucratic burden. We are arguing for its removal because what local authorities have done has worked so well, particularly through the operation of the concordat. We want to see the application of that rather than a bureaucratic straitjacket.

Perhaps the noble Lord, Lord Hanningfield, believes that that would provide a necessary protection for landlords. I do not believe that he is motivated by that spirit because usually he sees enforcement as being important in certain circumstances. We certainly take that view.

We would like to rely on the enforcement concordat, but we do not think that the pre-enforcement minded-to approach is necessary. We congratulate local government on the progress it has made in ensuring that the concordat works effectively.


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