APPENDIX 4: HOUSING AND REGENERATION BILL
— GOVERNMENT AMENDMENTS
Supplementary memorandum by the Department for
Communities and Local Government
1. This Memorandum is prepared by the Department
for Communities and Local Government, and is supplementary to
the Memorandum dated 31 March. It explains the purpose of the
following Government amendment to the Housing and Regeneration
Bill that has been tabled for consideration at Lords Report stage.
Clause 69
Transitional arrangements
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary procedure: Negative resolution
2. Clause 69 confers power on the Secretary of
State to transfer any of the existing functions of the Housing
Corporation ("Corporation") to the Regulator, the Homes
and Communities Agency ("HCA") or the Regulator and
the HCA concurrently. The amendment provides a new power to make
further provision in respect of a function transferred under this
clause. This is to ensure that we can bring the transitional arrangements
to a conclusion smoothly.
3. The power is necessary to make clear what
happens to the transferred functions when the Bill provisions
are brought into force and the transitional arrangements are brought
to an end. We are concerned that without this power, there may
be some doubt as to how to bring the transfer of functions to
an end. A revocation of the order in these circumstances would
have no effect if the transfer is not dependent on the continuing
effect of the order. We propose therefore to put this beyond doubt
with a freestanding power.
4. The exercise of these powers is unlikely to
be controversial. The Department considers that it is appropriate
that the regulation making powers should be subject to the negative
resolution procedure (the same procedure as the underlying power
to transfer the functions).
Department for Communities and Local Government
June 2008
Second Supplementary memorandum by the Department
for Communities and Local Government
5. This Memorandum is prepared by the Department
for Communities and Local Government, and is supplementary to
the Memorandum dated 31 March. It explains the purpose of the
following Government amendments to the Housing and Regeneration
Bill that have been tabled for consideration at Lords Report stage.
Addition to Clause 292: Ballots before certain
disposals to private landlords
Power conferred on: Appropriate authority
Power exercisable by: Guidance
Parliamentary procedure: None
6. The amendment is being made to clause 292,
which itself amends Schedule 3A (consultation before disposal
to private sector landlord) to the Housing Act 1985. The amendment
inserts a new paragraph 5A into that schedule. The effect of the
new paragraph is to place a duty on the appropriate person (Secretary
of State in England and the Welsh Ministers in Wales) to give
(and publish) guidance to local authorities about complying with
the requirements of paragraph (3) of the schedule about consultation.
Clause 292 amends paragraph (3) of the schedule to include a requirement
for the local authority to hold a ballot. The amendment would
require local authorities to have regard to the guidance when
complying with the requirement of paragraph (3).
7. It is currently the practice for the appropriate
authority to issue informal guidance and it is considered that
putting this on a statutory footing is necessary to ensure that
in conducting consultations local authorities can operate against
a consistent set of principles which they will be expected to
follow unless there are clear reasons not to do so.
8. It is considered that issuing guidance is
preferable to other forms of delegated legislation as guidance
is likely to have to deal with a number of alternative situations,
the assessment of which is likely to be the responsibility of
the local authority concerned which would not be suitable for
more form instruments. The issue and subsequent modification of
guidance can provide a more flexible response to changing circumstances.
9. Since the guidance will only relate to limited
matters and cannot override any statutory requirement it is not
considered appropriate the guidance should be subject to any parliamentary
procedure as is sometime the case.
Addition to Schedule 11: Replacement of certain
terminated tenancies
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary procedure: Affirmative
resolution
10. The amendment to Schedule 11 will add to
the provisions in it by which a new tenancy arises for the benefit
of an ex-tenant (a "tolerated trespasser") if he or
she still occupies the property. The amendment applies to both
England and Wales and confers power on the appropriate national
authority (the Secretary of State in England and the Welsh Ministers
in Wales) to specify in effect that a new tenancy will also arise
where, since the occupant lost tenancy rights, the landlord which
owns the property has changed, and to make necessary provision
for the details of how this will work (with the intention of keeping
as close as possible to the existing provisions for new tenancies
in Schedule 11). The amendment is necessary in order to prevent
the unfair situation that some ex-tenants would otherwise be granted
new tenancies but others not, according to whether or not the
landlord had changed. We wish to enable the provision to be made
by exercise of a delegated power, rather than by inclusion on
the face of the Bill, so that a full consultation process can
be undertaken before final decisions are made on the detail.
11. The law on tolerated trespassers is complex.
Briefly, a tenancy currently ends as a result of a possession
order while the tenant is still living in the property, depriving
both landlord and tenant of the terms of the tenancy agreement
and most provisions of the relevant legislation during the (often
lengthy) period that the ex-tenant continues in occupation. Part
1 of Schedule 11 prevents the creation of further tolerated trespassers
in the future, and Part 2 gives new tenancies to existing tolerated
trespassers. Seven delegated powers have already been included
in Part 2 (see the section on what were then new clause 298 and
new Schedule 10 in the Memorandum dated 31st March
2008, pages 30 and 31).
12. Part 2 of Schedule 11 at present provides
for all existing tolerated trespassers to receive new tenancies,
with the exception of those whose landlord has changed. The main
circumstances in which a landlord changes are likely to be a stock
transfer from a local authority to a Registered Social Landlord,
an RSL merging with or being taken over by another, or a local
authority landlord changing due to boundary changes. Following
such a change, many tolerated trespassers will be offered new
tenancies by the new landlord. The proposed amendment and power
will relate only to those ex-tenants who have not signed new tenancy
agreements with the new landlord, for whatever reason, with the
result as the provisions are currently worded that the anomaly
of tolerated trespasser status would continue.
13. The Government has been lobbied by various
organisations including Shelter and the Housing Law Practitioners'
Association to add an amendment to end this anomaly. We were originally
reluctant to do so because we are aware that different transferee
landlords take different approaches to the tolerated trespassers
they acquire - some granting full assured tenancies, and others
granting only assured shorthold tenancies (with a promise of an
upgrade if specified conditions are fulfilled). However we do
acknowledge that it is unfair for the fact of a change of landlord,
which is outside ex-tenants' control, to determine whether they
have tenancy status restored or not.
14. The amendment gives the appropriate national
authority the power to provide by order that Part 2 of the Schedule
shall apply to cases where the interest of the landlord has passed
to a successor during the termination period (including where
this has happened more than once). In applying Part 2 of the Schedule,
the order may make such modifications to its provisions as are
specified in the order. It is likely that the Order will make
provision for several different types of case, since the tenancy
formerly held by the ex-tenant may have been secure, introductory,
assured, or demoted.
15. The intention is that if, following consultation,
the power is exercised, the Order will come into force at the
same time as commencement of the tolerated trespasser provisions
in the Bill.
16. The Department received very positive responses
from landlords, both local authority and RSL, to the consultation
which was run in 2007 on whether to legislate to reform tolerated
trespasser law. On balance the response was that the legal complexities
caused by the tolerated trespasser doctrine cause landlords many
serious difficulties and relatively insignificant benefits. However
undoubtedly the flexibility to decide what sort of tenancy to
offer to a transferred tolerated trespasser is one of those benefits,
and exercise of the proposed power may arouse some opposition
from RSLs, with regard to the detail affecting different types
of case. The Department therefore considers that it is appropriate
that the regulation making powers should be subject to the affirmative
resolution procedure.
Communities and Local Government
July 2008
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