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Baroness Maddock: I thank the Minister for giving the detailed information about the way in which the enforcement concordat works. If he had not done so I was about to ask him whether he had some figures. In the light of his remarks, I am satisfied that the situation will be satisfactory. The issue was raised by landlords. Obviously some landlords still prefer the old system, but I am satisfied by the Minister's remarks.
Lord Hanningfield: As the noble Baroness said, the matter has been raised by landlords' associations as they are concerned about the processes. I totally agree with most of what the Minister has said because there has to be the ultimate sanction of enforcement. One wants to try to do remedial works as quickly as possible with the minimum of fuss. It is best to let them happen rather than go through lots of bureaucratic procedures. We shall analyse what the Minister said. I beg leave to withdraw the amendment.
"REASONS FOR DECISION TO TAKE ENFORCEMENT ACTION
(1) This section applies where a local housing authority decide to take one of the kinds of enforcement action mentioned in section 5(2) or 7(2) ("the relevant action").
(2) The authority must prepare a statement of the reasons for their decision to take the relevant action.
(3) Those reasons must include the reasons why the authority decided to take the relevant action rather than any other kind (or kinds) of enforcement action available to them under the provisions mentioned in section 5(2) or 7(2).
(4) A copy of the statement prepared under subsection (2) must accompany every notice, copy of a notice, or copy of an order which is served in accordance with
(a) Part 1 of Schedule 1 to this Act (service of improvement notices etc.),
(b) Part 1 of Schedule 2 to this Act (service of copies of prohibition orders etc.), or
(c) section 268 of the Housing Act 1985 (service of copies of demolition orders),
in or in connection with the taking of the relevant action.
(5) In subsection (4)
(a) the reference to Part 1 of Schedule 1 to this Act includes a reference to that Part as applied by section 27(7) or 28(7) (hazard awareness notices) or to section 39(7) (emergency remedial action); and
(b) the reference to Part 1 of Schedule 2 to this Act includes a reference to that Part as applied by section 42(4) (emergency prohibition orders).
(6) If the relevant action consists of declaring an area to be a clearance area, the statement prepared under subsection (2) must be published
(a) as soon as possible after the relevant resolution is passed under section 289 of the Housing Act 1985, and
(b) in such manner as the authority consider appropriate."
Clause 5 places a general duty on local authorities to take action in respect of category 1 hazards. The local authority must take the most appropriate of the courses of action available to it. Under Clause 7, which provides powers to take action in respect of category 2 hazards, they may take one of the available courses of action.
In their 8th and 10th reports the Joint Committee on Human Rights expressed concerns that the absence of a duty on local authorities to give reasons for deciding which form of enforcement action to pursue under Clause 5 or 7 fails to comply with Article 6 of the convention on human rights, on the right to a fair hearing, with Article 8, on respect for private and family life, and with Article 1 of the First Protocol 1, on the protection of property.
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The amendment aims to give effect to the Joint Committee's recommendation by placing a duty on local authorities to prepare a statement of their reasons for their decision to take the course of action on which they have settled, and to provide a copy of that statement with the notices, copies of notices and copies of orders that they are required to serve under the enforcement provisions of Part 1 of the Bill and the relevant provisions of the 1985 Act.
It is clear that guidance does not have to be given, which is why we suggest in Amendments Nos. 24 and 25 that it "will" give guidance. The appropriate national authority would therefore be under a duty to give guidance rather than merely having the power to do so.
Amendment No. 26 would add paragraphs (e), (f), (g) and (h). Paragraph (e) would make transparent the training expected of environmental health officers. It is clear what the roles to be undertaken under the new system will require but one ought to be specific about what is required of local authorities rather than the rather vague provision in the Bill as it stands.
Paragraph (f) is proposed because certain specifications are expected of local authorities. Paragraphs (g) and (h) also add to the guidance. We are trying to expand the degree of guidance needed so that the time and cost implications for local authorities are much clearer and more quantifiable. We want the situation to be clear so that authorities know what the costs are, and so that the Local Government Association can make representations to the Government for proper funding.
We are attempting to probe the Government's thinking a little on the system that the Bill envisages. It would surely be preferable to have a system that is easily understood, with uniformity throughout the country. There appears to be nothing at present that
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restricts one local authority from interpreting this part of the Bill significantly differently from a neighbouring local authority. Circumstances will obviously change from area to area and, indeed, from district to district whatever the Government do. Surely allowing each local authority recourse to the national authority is a sensible step. I beg to move.
Lord Rooker: I regret that my response to the amendments will be a lot longer than the speech of the noble Lord, Lord Hanningfield. He said that he was probing the Government. I am all in favour of spending time on the early parts in the hope that we can avoid later amendments. One of these days we might even be able to miss out a stage.
Clause 8 enables the appropriate national authority to give guidance to local housing authorities on the exercise of their functions under Part 1. Our intention is that the guidance will fall broadly into two categories: guidance about the way in which properties are inspected and the way in which hazards are assessed, using the housing health and safety rating system; and guidance about the way in which authorities, when they have established that a hazard exists, can use the enforcement duties and powers provided in Part 1. Those relate to the use of improvement notices, prohibition orders, hazard awareness notices, demolition orders, clearance and the use of emergency measures.
Amendment No. 24 would place the appropriate national authority under a duty to give guidance, which we think is unnecessary. I can assure Members of the Committee that we intend to issue that guidance. It has already been made available in draft.
On Amendment No. 25, we are not sure what the difference is. Noble Lords will be aware that precursors of Amendment No. 26 were debated thoroughly in the other place. There was a Division, but the argument is obviously not convincing so I shall try againhence the extra time that it will take.
Amendment No. 26 adds to the topics on which guidance may be given. We are not convinced that the additions are necessary. More that that, all but the reference to fire safety, which is important, are entirely inappropriate in guidance about the use of the enforcement tools available to authorities. It is the case that authorities need to ensure that their officers are appropriately qualified and experienced to carry out their work on behalf of the authority. Authorities will also need to consider the costs of enforcement action to themselves as well as to property owners.
We suspect that Amendment No. 26 reflects continuing nervousness over the change to a risk assessment system. But we should not have too many qualms about current competence and experience of environmental health practitioners. I have heard no criticism of those professional officers. They are highly respected and regarded by all sections of society. They have an extremely interesting job, given the range of things in which they can become involved. The rating system requires a change of approach by local authorities. But the housing health and safety rating
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system is essentially a tool to assist professional judgment. It makes transparent the process environmental health practitioners already go through in judging fitness.
They are already trained in the use of risk assessment methods. The Housing Minister in the other place, Keith Hill, referred to an account of their members given by the Chartered Institute of Environmental Health in their response to consultation on the enforcement guidance. The CIEH pointed to environmental health practitioners',
I doubt very much that we are talking here about the need for new qualifications. However, we shall ensurewe have made a commitment on thisthat the rating system is implemented smoothly. To achieve that we shall ensure that there is adequate training in the system, and my officials are currently discussing with the Local Government Association and others the kind of training that will be required.
Subsection (1)(f), which Amendment No. 26 would insert into Clause 8, appears once again to be an attempt to write a regulatory impact assessment into the guidance. We do not believe that that is the function of guidance.
I am aware that some local authorities have suggested that inspections may take longer than at present. If so, we are not sure whether that reflects the complexity of the rating system or shortcuts that are taken now in the fitness inspection. What is certain is that inspections are likely to vary considerably in length, both in the field and back at base. Most dwellings, even really bad ones, will not be riddled with serious hazards. They are likely to contain one, perhaps two, although there may be less serious problems as well. Some may well require considerable attention. Surely that should not be so, if a building is to be made safe for people to occupy.
On new subsection (1)(g), which would be inserted by the amendment, it is not clear in what circumstances authorities may need to compensate landlords. Landlords will have a right to appeal the improvement notices and prohibition orders for which the Bill provides, before they take effector, in the case of the emergency measures, after the measures have been taken. Compensation may well be an outcome of an appeal in some such cases. I suggest that compensation should be dealt with on appeal. I cannot agree that compensation should be a matter for government guidance under Clause 8; nor can we see that compensation is a likely outcome for a landlord who has kept his tenants in conditions so hazardous that a local authority has felt compelled to take enforcement action.
We must be sensible about this. The vast majority of landlords are good, decent property owners, providing a really good service for their tenants. Others sometimes deliberately keep tenants in hazardous conditions and ignore their complaints. Where enforcement action is taken in those circumstances, compensation should not be on the radar.
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We take far more seriously, of course, any concerns about fire safety. Fire is one of the 29 hazards dealt with by the rating system. There will be guidance on hazards from fire. It will cover the causes and preventive measures. It is not necessary to single out fire safety on the face of the Bill. All the hazards will be spelt out in the regulations which prescribe the housing health safety rating system method under Clause 2.
We want local authorities to prioritise action against all serious hazards. In the case of houses in multiple occupation covered by Part 2, they will be required to do so following an application for a licence. I promise that we shall emphasise that in the guidance that we issue to authorities.
It would be inconsistent with a system of risk assessment to prescribe specific means of dealing with hazards. However, the technical guidance to be issued under this clause will recommend that there should be adequate means of escape from fire from all parts of a building. In some houses in multiple occupation, sprinkler systems may well be required. That does not mean that authorities will require such systems in all houses in multiple occupation, but it does mean that it will be appropriate to fit them where the risk justifies it.
I hope that noble Lords will accept that the technical guidance under Clause 8 will deal comprehensively with fire and other hazards, and I believe that the elements of the amendment are either misplaced or inappropriate in the circumstances.
On Amendment No. 27, Clause 8 enables the appropriate national authority to give guidance to local housing authorities on the exercise of their functions under Part 1. I am certainly willing to take this amendment away. We shall, of course, lay a draft of the guidance before Parliament and we are willing to consider further whether the guidance should be made by affirmative resolution. I shall bring forward a suitable amendment to provide for that, if that is the final decision.
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