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I say no more about that, because we do not object to the regulations in any sense. However, they give me the opportunity to put two questions to the Minister. First, when the Minister in another place dealt with the regulations, he said that—the noble Lord repeated the figures—the vast majority of requests were dealt with in a timely manner. The figure cited in another place was that 82 per cent were dealt with within the time limit, which means, if my maths are right, that 18 per cent were not dealt with within the time limit. I would therefore be grateful if the Minister could remind the Committee what sanctions are available to encourage public bodies and all others who are obliged to respond within the 20 days to meet that target and what further action the Government will be taking to improve their performance.

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My second question concerns what further changes the Government might be considering. In response to that question, the Minister in another place said that they were consulting on that and expected to give the result of that consultation shortly. Can the noble Lord say anything more at this stage? In particular, what is meant by “shortly”? I recall that some years ago my noble friend Lord Newton of Braintree, who was here earlier, announced that we would produce something “later in the spring”. We had to somewhat stretch the meaning of “spring” when we published our response in July. Whenever a government Minister or department uses the word “shortly”, one feels that it is worth asking what they mean by it and when they hope to report.

Lord Thomas of Gresford: It may be that the 18 per cent failure rate for complying within 20 days relates to the House authorities’ refusal to comply with the expenses request under the Freedom of Information Act. We welcome and will support these regulations, as they bring Northern Ireland into line with England and Wales.

Lord Jones: I thank my noble friend for his patient introduction. Does he not agree that 60 working days is a lengthy period? Can he give us the likely reasons for requiring such a long time? The first line of the third paragraph of the Explanatory Note contains the word “certain”. What kind of “certain” authorities are we considering here? The word has been inserted with deliberation. Likewise, we have reference to the word “promptly”; that seems to sit uneasily with 60 working days, which can be some months if one includes vacation days. Has my noble friend any statistics on this? Do we know how many requests are expected? Are any statistics available for previous years to inform the estimate in that respect? The Explanatory Note refers to a “fees notice” given to the applicant. Do the fees vary and do they always apply? May we have an instance of the kind of fee that is charged? Are they set on a nationwide basis or are they decided by a particular authority? Does my noble friend have any Welsh details to report in this respect? Also, would he define the phrase “grant-maintained integrated school” as it is written here and say what is meant by a “voluntary school”?

4.45 pm

Lord Patel of Bradford: I thank noble Lords for their questions, which I shall attempt to address; if I do not pick up every one that has been asked, I will come back in writing. On timeliness, the noble Lord, Lord Henley, is absolutely right to say that 82 per cent of requests were dealt with in time, which obviously leaves 18 per cent that were not. Some of those will be accounted for by the fact that they had exemptions, while some will have been the subject of the issues that I outlined about getting access to appropriate data and people in good time. We believe that 82 per cent is a very good response, but we should not be complacent. We have a number of activities in hand in terms of training and enforcement measures to continue to improve performance. As I have said, we have seen

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considerable improvements between the very first year and last year. The Information Commissioner can ultimately issue a practice recommendation against an organisation that continues to respond late, which I think addresses one of the issues raised by the noble Lord.

With respect to the question about 60 days being a long time, a number of organisations have the ability to have an exemption under this provision. As I mentioned, maintained schools and maintained nursery schools in England and Wales, as well as schools maintained by the Secretary of State for Defence, do not have to count any day that is not a school day, such as school holidays, towards the period of 20 working days within which the request must be answered, provided that the request is answered within 60 working days. I completely agree with the noble Lord that that seems a long time, but an eight-week summer holiday would account for 40 days of that time. If someone asked a question on the very first day of the holiday and the school was closed for 40 days, it would have only 20 working days in which to respond to the freedom of information request. Therefore, the measure probably accommodates all eventualities.

As regards other organisations, the National Archives, the Public Record Office of Northern Ireland and the places of deposit appointed under Section 4(1) of the Public Records Act 1958 have up to 30 working days to respond to a request when the information requested is contained in a transferred public records environment.

The Information Commissioner can exercise discretion to extend the 20-working-day deadline up to 60 working days in cases where, to respond to a request, information needs to be obtained from an individual who is actively involved in an operation of the Armed Forces or preparations for such an operation. The commissioner can also exercise discretion to extend the 20-working-day deadline up to 60 working days in cases where, to respond to a request, information needs to be obtained from outside the UK. I noted that the noble Lord used the word “promptly”. We expect people not to wait until the very last day of the extension to reply but to reply as soon as they can and as promptly as possible.

I have several definitions of grant-maintained, integrated, controlled and voluntary schools. It might be easier if I wrote to the noble Lord with that extensive list.

Lord Jones: Thank you very much.

Lord Patel of Bradford: I have completely forgotten what the noble Lord, Lord Thomas, asked me. I think that he said that the regulations are useful and that he is pleased to see them in place.

With that in mind, I reiterate that the Freedom of Information (Time for Compliance with Request) Regulations 2009 apply to specific types of schools and pupil referral units in Northern Ireland to address specific circumstances where it is impractical to comply with 20 working days. They will not apply

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to the majority of requests and do not remove the obligation on Northern Ireland schools and units to comply with these requests promptly. I therefore hope that noble Lords will agree that this is a necessary, common-sense measure.

Motion agreed.

Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009

Copy of the Order
11th Report from JCSI

Considered in Grand Committee

4.49 pm

Moved By Baroness Andrews

That the Grand Committee do report to the House that it has considered the Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009.

Relevant Document: 11th Report from the Joint Committee on Statutory Instruments.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): We are today considering the draft Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009, which is intended to extend the provisions in the Housing and Regeneration Act 2008 that deal with tolerated trespassers so that they apply to situations where there has been a change of landlord.

“Tolerated trespasser”, as noble Lords will remember from the debate on the Housing and Regeneration Bill, is a term that the courts have coined to describe people who have lost their legal status as a tenant after the court has granted the landlord a possession order but whom either the landlord or the court is allowing to remain in the property. This will usually be on certain conditions, such as that the occupant continues to pay the current rent plus a weekly sum towards arrears of rent. In the vast majority of cases, these are people in social housing.

The loss of tenancy status causes serious problems not just for the ex-tenant but for their former landlord. This is because neither can rely on the terms of the tenancy agreement, which no longer applies, or on the provisions in the relevant housing legislation. I will return to what that means in practice.

Schedule 11 to the Housing and Regeneration Act prevents the creation of further tolerated trespassers in the future. It also remedies the position for the vast majority of existing tolerated trespassers. We debated this at some length and it commanded the full support of all parties. Part 1 of Schedule 11 ensures that in future, where a person is subject to a possession order, they will continue to be a tenant until they are finally evicted from the property. Part 2 restores tenancy status to existing tolerated trespassers. This applies to all ex-tenants who remain in their homes, with one exception, which we are dealing with today. The exception

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relates to occupants whose landlord changed after they lost their tenancy status. It is this gap that the draft order seeks to fill.

Perhaps I may put this in context. It is a complex issue and I am blessed with a very straightforward speaking note, thanks to official advice. By far the most usual situation in which there is a change of landlord is where the property transfers from a local authority to a registered social landlord—an RSL housing association—which usually happens as a result of large-scale voluntary transfers. It could also happen where one RSL takes over the stock of another or where one local authority is substituted for another, for example as a result of boundary changes, although these are likely to be rare.

Noble Lords will remember that at Report stage of the Housing and Regeneration Bill the noble Baroness, Lady Hamwee, who is not in her place, introduced an amendment that would have dealt with the stock transfer situation by providing transferring tolerated trespassers with an assured tenancy. However, instead of dealing with the transfer issue in the Act, as she proposed, it was decided to add a power to provide by order for the provisions relating to existing tolerated trespassers in Part 2 of Schedule 11 to be extended to the stock transfer situation, after seeking landlords’ views on this issue. That is why we are debating this order. It was agreed that it would not be appropriate to make these significant changes without first taking into account the views of those landlords who would be affected by them. Since then, we have consulted on options for using the order-making power. The outcome of the consultation was unanimously in favour of amending the legislation to restore tenancy status to those ex-tenants whose landlord has changed.

It might be helpful to consider what happens to occupants when local authority stock is taken over by an RSL following a large-scale voluntary transfer. Existing tenants, who as local authority tenants will normally have a secure tenancy, will have a new assured tenancy under the new RSL. This is because RSLs cannot grant secure tenancies. However, the position with occupants who have lost their tenancy status before they transfer is not as clear. It is likely that practice varies from one RSL to another. The fortunate ones will be offered a new full assured tenancy, putting them in the same position as transferring tenants. Alternatively, the RSL might decide to give them only an assured shorthold tenancy, probably on the understanding that it will turn into a full assured tenancy if the person continues to comply with the conditions in the possession order.

However, it has been confirmed to us as a result of the consultation exercise that, sadly, some RSLs fail to offer any form of tenancy to some, or in some cases all, of the occupants who transfer to them as tolerated trespassers. This may depend on the level of rent arrears or the seriousness of the breach that led to the possession order. We estimate that as many as 70,000 to 85,000 local authority tenants could have lost their tenancy as a result of a possession order and have then been transferred to an RSL in a stock transfer situation. We do not know how many of these have not been given a new tenancy by the RSL and, therefore, continue

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as tolerated trespassers. However, we think that the number could be quite considerable. Where there has been no change of landlord, it is not uncommon for people who have lost their tenancy following a possession order to continue living in their homes for years without realising that they are no longer tenants. This is one of the grey areas of this type of situation. The issue may come to light only when they seek to enforce their tenancy rights.

I will cite a couple of imaginary cases which I think will help noble Lords to understand the situation. Mrs Green has been subject to a possession order since 2001, but by and large has continued to keep up with the repayment terms in the order. She realises that she is no longer a tenant of the local authority only when she tries to get the council to do something about the rampant mould and damp in the kitchen and bathroom and the council points out that it no longer has any statutory or contractual duty towards her. A second example is Mrs White, whose true situation comes to light only when she dies and her daughter, who has always lived with her mother and has cared for her, finds that she cannot continue to live in her home after her mother’s death because she cannot succeed to the tenancy under the normal rules, as technically her mother no longer had a tenancy. This would obviously be very difficult for the tenants in question to deal with.

The situation is different where there is a change of landlord. In another example, if Mr Gray and his wife are not already aware that they lost their status as tenants after the council took out a possession order against them, they are likely to realise that something is amiss when, following transfer of their home to Trumpton Housing Association, their neighbours are signed up to a new tenancy but they are not. Ex-local authority tenants who transfer to a new RSL are more likely to become aware of their altered status. However, the practical effect of being a tolerated trespasser will be just the same whether they are aware of it or not.

Why does it matter that an occupant has lost their status as a tenant? The examples that I have given illustrate that, for ex-tenants, probably the most serious consequences are that neither their spouse nor their children will be able to succeed to the property on their death and that the landlord is under no contractual obligation to repair or maintain the property. For the landlord, the picture is more mixed. We can probably see potential benefits in the existing situation, such as the absence of the repair obligation, although it seems doubtful that landlords would allow their properties to fall into serious disrepair whatever the status of the occupant. Transfer landlords have the advantage of being able to choose whether to provide tenancy—and, if so, what sort of tenancy—to occupants who transfer as tolerated trespassers.

There are disadvantages, too. It is unclear whether landlords can charge annual increases in rent from people who are not tenants or whether such people should be allowed to vote in tenant management ballots. Those who responded to the consultation exercise generally felt that the disadvantages to landlords

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of allowing the existing uncertainty to continue outweighed any theoretical potential advantages. That is the context of the order.

The order restores tenancy status to ex-tenants whose landlord has changed by creating a new tenancy between the transfer landlord and the occupant. The tenancy will start immediately and automatically on the date on which the order comes into force. There will be no legal requirement on the landlord to issue a formal tenancy agreement, as the new tenancy will arise automatically on the commencement date. However, to ensure that tenants are informed, we will issue guidance to landlords to the effect that they should issue former tolerated trespassers with a document as soon as possible after commencement of the order. This document will serve the dual purpose of notifying the person that they have a new tenancy and confirming the terms of the new tenancy.

Our aim has been to provide wherever possible that the new tenancy created by the order is of the same type as, or as near an equivalent as possible to, the original tenancy. This is in line with the provisions in Part 2 of Schedule 11. However, where there has been a change of landlord, and particularly where the nature of that landlord has changed, we recognise that this may not always be possible. In the case of a stock transfer, a tolerated trespasser who was formerly a local authority secure or introductory tenant under the Housing Act 1985 cannot continue with his previous tenancy type but must become an assured tenant of the RSL under the Housing Act 1988. This is because of the mutually exclusive provisions on landlords of secure and assured tenancies in the two Acts.

5 pm

While the other forms of transfer—that is, between local authorities or between RSLs—are likely to be rare, as I have said, we have provided for these in the order as well. For example, where the original and the new landlord are both local authorities, the new tenancy will be the same as the original tenancy, in all but one case, which is where the original was an introductory tenancy but the new local authority landlord does not operate such a regime. In that case, the new tenancy will be a secure tenancy. The draft order also provides for the terms and conditions of the new tenancy to be the same as the original one, subject to any modifications that may be needed to reflect the fact that, in the stock transfer situation, the two tenancy types are different.

Our aim in drafting the order has been to ensure that it does not disadvantage landlords or tenants. For example, it has been drafted to ensure that no new statutory succession rights will be created. However, there is nothing to prevent a successor landlord from voluntarily offering new succession rights as a term of the tenancy agreement if they wish to do so.

We are giving the courts a power to allow claims to be brought between the newly restored tenant and either the original landlord or the newly restored transfer landlord relating to the period when the occupant was a tolerated trespasser. In so doing, the order aims to reproduce as far as possible the provisions in Schedule 11 that give the court discretion over whether

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to allow such claims. The provisions in Schedule 11 are in turn designed to continue the discretion that the courts currently have to allow such claims.

I should make it clear that the order will apply only to occupants who are still tolerated trespassers on the date when the order comes into force. Where the transfer landlord has taken action to deal with the situation before the commencement date, whether by issuing a new tenancy or by proceeding to eviction, the order will have no effect.

Should noble Lords approve the order, both it and Schedule 11 will be brought into force at the same time. Noble Lords should know that we have delayed the commencement of Schedule 11 because, due to the complexities of this area of law, which have been self-evident in the way in which I have had to describe the order itself, it was felt essential to make all changes at the same time for the sake of all concerned: landlords, tenants, their advisers and the courts. The Secretary of State will be commencing Schedule 11 for England and Wales. The Welsh Assembly Government are working in parallel to introduce an affirmative order in the same terms as the one that we are considering today. If all goes according to plan, the Welsh order will also come into force on the same date as Schedule 11.

Noble Lords may be reassured to know that, as I have mentioned, it is our intention to provide non-statutory guidance to assist landlords in implementing the tolerated trespasser provisions in the 2008 Act and the affirmative order. We will ensure that that is available as soon as possible after the provisions come into force.

For those of us who survived the Housing and Regeneration Bill, it is good that we are now at a point where we are putting into law the commitments that we made to make life better for people who are very vulnerable by making this secure for them. I hope that noble Lords will feel able to support the order. I beg to move.

Lord Bates: I welcome the order. As the Minister said, it closes a loophole that perhaps should never have existed in the first place, a point that should be put on the record. This was known about; indeed, it was raised in debate and an amendment was tabled to the Housing and Regeneration Bill—I was not a Member of your Lordships’ House at that point, but I have read the record in Hansard—so the problem was presented to the ministerial team and the Government, and they were aware of it. There was also case law to back that up; the notes point to the Court of Appeal conclusion in the Knowsley Housing Trust v White case about tolerated trespassers. So there is a body of evidence pointing to the dangers for the tenant in relation to the ability to succeed to the tenancy in the event of the death of that tenant, the problems faced by the landlord in relation to being able to secure rent increases that he may legitimately be entitled to, and whether this group of people would be able to have their full rights associated with assured tenancies during the period.

I shall put a few questions to the Minister, who as usual has done a fantastic job of making this fairly complex legislation understandable to the non-legal minds here. I particularly appreciated the examples

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and case studies, which help to make these points clear. My first question relates to tolerated trespassers. Would tolerated trespassers be able to vote in stock transfer and tenant management ballots? Secondly, would these people actually know that they were tolerated trespassers? The Minister referred to some 75,000 to 80,000 people who may fall into this category. According to the record when this was debated in the other place, that figure was obtained in 2006, I think. Does she have a more up-to-date record of how many are covered by this provision? What steps are being taken to make sure that those who may be affected by it actually know of their rights and status? It seems that a number of these problems arise when there is a transfer from a registered social landlord. Perhaps some guidance towards best practice could be produced—not necessarily in legislation—setting out the process of consultation and how to ensure that people fully understand their rights and status.

While this may be outside the bounds of ministerial responsibility and perhaps within the remit of the courts, the term “tolerated trespasser” seems a bit aggressive in this modern age. Is there an alternative? It has some strange connotations and could lead people to become anxious. If I was described under law as a tolerated trespasser, that would not exactly make me feel secure; in fact, I would feel that I was doing something illegal and wrong. Language is important and I wonder whether the Minister will comment on whether the term could be changed.

My final point relates to the consultation. The Minister said that extensive consultation had taken place. Could she outline the nature of that consultation and the feedback that has been received? I know that some organisations, particularly Shelter, have been energetic in putting forward their concerns on this issue. It would be good to know that such organisations, where these issues are fully understood, were involved in the consultation process and that their views were taken into account. With those questions and reservations, I certainly wish to support the order, which seeks to tighten this loophole.

Baroness Maddock: I thank the Minister for explaining as succinctly as she could this rather complicated situation. Indeed, as the noble Lord, Lord Bates, has just said, the name “tolerated trespasser” is extremely odd. He also mentioned the House of Lords judgment on Knowsley Housing Trust v White. What was interesting was that the noble and learned Lord, Lord Neuberger, referred at the time to the tolerated trespasser status as being “conceptually peculiar, even oxymoronic”. It certainly is very strange. In a way it illustrates the muddle that we have got into in housing over tenancies and the loss of tenancy status. This has been made much more complicated by the number of stock transfers that have taken place over recent years.

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