Eleventh Report
Instruments reported
The Committee has considered the following instruments
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. Draft Housing (Tenancy Deposit Schemes)
Order 2007
Summary: Tenancy deposit protection has developed
from a voluntary approach in 2000, through legislation in 2004,
to implementation in 2007. In finalising their proposals, the
Government have worked closely with interested parties and have
formulated the changes made by this Order to facilitate the smooth
running of the tenancy deposit protection schemes. We trust that
this consultative approach, and publicity efforts now under way,
will indeed mean that the schemes work effectively.
This Order is drawn to the special attention of
the House on the ground that it gives rise to issues of public
policy likely to be of interest to the House.
1. The Department for Communities and Local Government
(DCLG) have laid this Order under paragraph 11 of Schedule 10
to the Housing Act 2004 ("the 2004 Act"). An Explanatory
Memorandum (EM) and a Regulatory Impact Assessment (RIA) have
also been provided. The Order supplements the provisions relating
to tenancy deposit schemes that are contained in the 2004 Act.
BACKGROUND
2. The RIA (paragraph 8) explains that in 2000,
in the light of bad practice in the handling of tenants' deposits
by a minority of landlords, the Government introduced a voluntary
tenancy deposit scheme, whose members included representatives
of the National Federation of Residential Landlords. However,
take-up was low, the voluntary approach did not work, and the
scheme was wound up.
3. When the Housing Bill was introduced in January
2004, it did not include measures to protect tenants' deposits
because these were intended to be included in a draft Law Commission
Bill on tenure reform, to be published in that year. However,
because of delays to the latter Bill, the Government added measures
on tenancy deposit protection to the Housing Bill during consideration
in the House of Lords.
4. The 2004 Act, at sections 212-215 and Schedule
10, thus contains provisions to give protection to tenancy deposits
for Assured Shorthold Tenancies (ASTs). The provisions are aimed
at removing the risk of misappropriation of such deposits by landlords
and letting agents. The 2004 Act requires the Government to make
arrangements for securing one or more tenancy deposit schemes
to safeguard all new deposits paid in connection with ASTs.
CONSULTATION
5. The EM states that "Parliament envisaged
during the passage of the Housing Bill that revision of Schedule
10 might be necessary, should problems on its operation come to
light … In the event, that is what has transpired."
In November 2005, the Department published a consultation document
seeking comments on what information a landlord should be required
to pass to a tenant, and whether or not landlords should be required
to provide their tenants with an inventory at the beginning of
a tenancy.[1] Most of the
consultation responses were relevant to the provisions which the
Department intend to include in a separate statutory instrument,
the Housing (Tenancy Deposit) (Prescribed Information) Order 2007,
which will be laid once this Order has been approved.
6. However, the EM states that the majority of
landlords and letting agent representatives who responded to the
November 2005 consultation paper raised concerns about the requirement
in the 2004 Act for joint authorisation in the custodial scheme[2]
for the release of the deposit at the end of a tenancy, even where
there existed rent arrears or damage and the tenant could not
be contacted. The proposals in this Order have been made in the
light of these responses.
CHANGES MADE BY THE ORDER
7. The Order proposes changes to Schedule 10
of the 2004 Act to achieve the following:
- to enable either a landlord or his tenant to
apply in certain circumstances to the administrator of the custodial
scheme to enable release of the deposit at the end of a tenancy
without joint authorisation by landlord and tenant, thereby reducing
the incidence of disputes going to court;
- to make greater use of deposit schemes' facilities
for the resolution of disputes ("alternative dispute resolution"
or "ADR"), and in particular to make the use of ADR
the default way in which disputes are resolved where a landlord
or tenant is in contact with the other party but the other party
is being uncooperative and not electing to resolve a dispute;
and
- to provide for landlords who are retaining a
deposit under an insurance-based scheme to cease retaining it
under that scheme and transfer the protection of the deposit to
the custodial scheme or another insurance-based scheme.
PUBLICITY FOR TENANCY DEPOSIT SCHEMES
8. The EM gives information about the steps which
the Government are taking to publicise the tenancy deposit protection
schemes "to 1.7 million tenants, 870,000 landlords and 12,000
letting agents". These include the distribution of leaflets
directed at tenants on the one hand, and landlords and agents
on the other, in February 2007; setting-up of a tenancy deposit
protection website (www.tenancydeposit.gov.uk);
and advertisements in the print media and on radio, beginning
in February 2007 and running until April/May 2007.
CONCLUSIONS
9. There has been a long pre-history to tenancy
deposit protection, moving from a voluntary approach in 2000,
through legislation in 2004, to implementation in 2007. The Department
have stressed that, in finalising their proposals, they have worked
closely with interested parties, including a Tenancy Deposit Protection
Advisory Group set up in 2005. They state that the changes made
by this Order are required to facilitate the smooth running of
the tenancy deposit protection schemes. We trust that the Department's
consultative approach and the publicity efforts now under way
will indeed mean that the schemes work effectively.
B. Education (Prohibition from Teaching or
Working with Children) (Amendment) Regulations 2007 (SI 2007/195)
Day Care and Child Minding (Disqualification)
(England) (Amendment) Regulations 2007 (SI 2007/197)
Summary: In January 2006, in response to public
concern, the Government gave a commitment to tackle the anomaly
whereby those who were convicted of a specified offence against
a child were automatically prohibited from teaching or working
with children (by being included in "List 99"), while
those who accepted a caution were not. These Regulations fulfil
that commitment.
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
10. The Department for Education and Skills (DfES)
have made the Education (Prohibition from Teaching or Working
with Children) (Amendment) Regulations 2007 ("the 2007 Education
Regulations") under sections 142, 144 and 210(7) of the Education
Act 2002; and the Day Care and Child Minding (Disqualification)
(England) (Amendment) Regulations 2007 ("the 2007 Day Care
Regulations") under section 104(4) of, and paragraph 4 of
Schedule 9A to, the Children Act 1989. In both cases, an Explanatory
Memorandum (EM) has also been provided.
THE 2007 EDUCATION REGULATIONS (SI 2007/195)
11. The EM states that the Regulations amend
the provision[3] whereby
the Secretary of State is under a duty to give a direction under
section 142 of the Education Act 2002 in relation to adults who
are found to have committed specified offences. The effect of
a direction under section 142 is that a person is prohibited from
teaching or working with children. Those who are subject to such
a direction are colloquially known as being included in "List
99".
12. The EM refers to the statement to Parliament
on 19 January 2006[4] made
by the then Secretary of State for Education, which made a number
of commitments following public concern resulting from reports
that a small number of individuals who were subject to the sex
offenders notification system, but not subject to the automatic
prohibition provision, were working in schools.
13. One of those commitments was that Criminal
Records Bureau checks should be mandatory for all new appointments
to schools' workforces. We drew the School Staffing (England)
(Amendment) Regulations 2006 (SI 2006/1067) to the special attention
of the House in our 33rd Report of session 2005-06 (HL Paper 170),
because they gave effect to that commitment.
14. The EM to the 2007 Education Regulations
explains that the main issue raised at the time of the January
2006 statement was that there was an anomaly between those who
were convicted of a specified offence against a child, who were
covered by the automatic prohibition provision in the Regulations,
and those who accepted a caution, who were not. SI 2007/195 gives
effect to the commitment made in the statement that anyone cautioned
or convicted for a sexual offence against a child, or for a serious
sexual offence against an adult, should be automatically entered
on List 99. The EM adds that the police will ensure that those
accepting a caution for a specified offence are made fully aware
of the implications of doing so.
15. The EM states that the draft Regulations
were subject to a consultation process between October 2006 and
January 2007; and that there were 28 responses which were mainly
in agreement with the proposals.
THE 2007 DAY CARE REGULATIONS
16. The EM states that the Regulations amend
existing provisions[5]
which set out the categories of persons who are disqualified from
registration in England as child minders or providers of day care
for children under the age of 8. Persons disqualified under these
Regulations may not act as childminders or provide day care.
17. The EM explains that the changes have been
proposed to align the Day Care Regulations with the amended Education
Regulations (referred to as the "List 99" Regulations),
and to fulfil the commitments in the statement of January 2006.
Consultation on the proposals, completed in January 2007, "supported
the proposed changes as being an important additional safeguard
for children."
CONCLUSION
18. We believe that the House will be interested
to see these two sets of Regulations. As well as making other
provisions, they give effect to the commitment made by the Government
in January 2006 to tackle the anomaly whereby those who were convicted
of a specified offence against a child were automatically prohibited
from teaching or working with children, while those who accepted
a caution were not.
1 See: http://www.communities.gov.uk/pub/990/TenancyDepositProtectionConsultationonSecondaryLegislation_id1500990.pdf
Back
2
The November 2005 consultation paper explained that there would
be two types of scheme: under a custodial scheme, deposits
are paid into and held in a separate account by the scheme administrator;
under an insurance-based scheme, the landlord or agent
retains the deposit and any failure on their part to repay it
to the tenant is covered by the scheme's insurance arrangements. Back
3
Regulation 8 in the Education (Prohibition from Teaching or Working
with Children) Regulations 2003 (SI 2003/1184) as amended by the
Education (Prohibition from Teaching or Working with Children)
(Amendment) Regulations 2004 (SI 2004/1493). Back
4
See HC Hansard, 19 January 2006, column 966 et seq. Back
5
The Day Care and Child Minding (Disqualification) (England) Regulations
2005 (SI 2005/2296). Back
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