APPLICATION FOR QUALIFICATION CERTIFICATE (Hansard, 30 June 1969)

§ Mr. Wylie
I beg to move Amendment No. 25, in page 27, line 18, leave out from 'unless' to end of line 24 and insert: 'the dwelling has all the standard amenities'. I am obliged to the Minister of State for writing to me on this matter which was raised during the debate on the Question, "That the Clause stand part" in Committee. This Clause relates to applications for qualification certificates, and a distinction is drawn in the circumstances envisaged in subsection (1) on the one hand and subsection (2) on the other. Subsection (1) deals with the situation, as I understand it, where at the date of the commencement of the Act no improvement works are required in order to provide the house with all the standard amenities. That is under paragraph (a). Paragraph (b) of the subsection deals with the situation in which the dwelling falls short of the standard but the necessary remedial work was begun before the commencement of the Act.
On the other hand, subsection (2) deals with a situation where an application is made for a qualification certificate before any works are begun. It seems to me that there is a hiatus here, and I am not at all sure what the way out is. I should be grateful if the Minister would consider this.
So far as I can see, there is no provision for a situation in which work is commenced between the commencement of the Act and before the application It may be that that is deliberate policy on the part of the Government, and I can understand the implications behind 181 subsection (2), namely, that it gives the tenant an opportunity to evaluate the consequences of those improvements as far as his rent is concerned and gives him an opportunity to object. The Minister explained that fully in the letter to which I referred.
My first concern here is this. I do not know how this will work in practice. Subsection (1) says: … an application … shall not be entertained unless … the dwelling has at all times since the commencement of this Act been provided with all the standard amenities… It is easy to envisage the circumstances in which although the dwelling at the time of the application satisfies the necessary standards, it is difficult to establish that many months or years ago the dwelling likewise satisfied all those standards. In Committee I raised the question what happens if an amenity has originally been provided and has since become unserviceable. The Minister's advice, I understand, is that not withstanding the unserviceability of the amenity, the amenity would have been provided and the local authority would be entitled to entertain the application.
That may be. But I think it is arguable in those circumstances because of the emphasis on the "at all times" point, that provision means not merely initial provision but by implication provision and maintenance during the whole period between the commencement of the Act and the date of the application.
Leaving that apart, will there not be difficulty here in trying to satisfy the standard set in paragraph (a)? How does one prove that the dwelling has at all times since the commencement of the Act been provided with the standard amenities? With that in mind, this Amendment has been put down simply to apply the test of the state of the dwelling at the time of the application as the matter which will decide whether the application will be entertained or not.
So far as I can see, there is no provision for an appeal against the local authority refusing to entertain an application. If an application is entertained and a certificate is refused, there are statutory provisions, in Clause 50, which enable the applicant to appeal to the sheriff on the ground that the certificate ought to have been issued.
182 It is interesting to note that subsection (3) of that Clause specifies two dates as being the crucial dates on the question of an appeal, namely, the state of the dwelling at the time of the hearing of the appeal, and secondly the state of the dwelling at the time of the issue of refusal of the certificate.
10.45 p.m.
If Clause 50 means that one could appeal against the refusal of a local authority to entertain an application—I do not think that it does—an impossible situation is created wherein the local authority is obliged to apply its mind to one set of criteria, namely, the state of the dwelling from the date of the commencement of the Bill till the date of the hearing, and on appeal to two other dates substituted therefor, namely, the state of the dwelling at the date of the application and the state of the dwelling at the time of the appeal.
That is why it seems to me that Clause 50 does not provide for an appeal against a refusal of the local authority to entertain an application. If it did, there would be a serious inconsistency between the two sets of provisions. If there is no provision for appeal against refusal to entertain an application, on the highly technical ground set out in subsection (1) of Clause 45, it seems that the Clause is even more complicated than appears at first reading.
Those are my two criticisms, which the Amendment is designed to cure. How does an applicant establish that at all times since the commencement of the Bill the dwelling has met the standard amenities? Second, if the local authority declines to entertain an application because it is not satisfied on that point, what provision is there for appeal against that decision?

§ Dr. Dickson Mabon
I am sorry that, although I went to considerable trouble in writing my letter of 23rd June to the hon. and learned Member for Pentlands (Mr. Wylie), I still do not seem to have got over the simple proposition that Clause 45 is arranged quite deliberately in subsections (1)(a) and (1)(b) and embodies a fundamental point of principle in the operation of Part IV.
The Amendment would allow a landlord who had managed, by whatever 183 means, after the commencement of the Bill, to provide all the standard amenities to apply right away for a qualification certificate. It might be that he had obtained the tenant's consent to the works being carried out without telling him of the full implications of the work, and particularly that it would allow the house to be converted from a controlled tenancy to a regulated tenancy. The Bill as drafted deliberately restricts the Clause 46(1) procedure to houses where there is no question of the standard amenities being provided after the commencement, and this is the point of principle which the Government regard as essential to the proper operation of Part IV.
The hon. and learned Gentleman raised several other matters, and in Committee I thought that his criticism was directed at the drafting, whereas it was basically a question of principle. He dealt with the point about standard amenities becoming unserviceable. In my letter to him I said: My own legal advice is that the unserviceability of an amenity would not alter the fact that it was provided in the house, and the situation you referred to would not therefore prevent the local authority from entertaining an application under Clause 46(1). I have since checked that, and the position remains as I was advised and as I stated on 23rd June.
We debated this matter extensively. The hon. and learned Gentleman has not adduced arguments further to those which he put in Committee. The Amendment would breach the principle of the Bill substantially. It is right that the tenant should be protected in this way, and I could not counsel the House to make the Amendment.
If the hon. and learned Gentleman wishes to take the matter a stage further, not necessarily tonight, and he has new points of argument to raise hereafter, I shall consult my noble Friend and the Secretary of State for Scotland to see whether there is some way in which the drafting of the Clause and its consequential Clauses could be improved, but I cannot depart from the general principle which I explained in Committee and outlined in shorthand fashion again tonight.

§ Mr. Wylie
I think that the Minister—and I can well understand this—was 184 reading a prepared brief not designed to cover the points I sought to make.
I thought that I had made it clear that I accepted the principle the Minister set out in the letter, because I think that the tenant would be prejudiced if the landlord could, without his consent, make improvements which would bring the property up to standard and enable certificates to be granted. Our Amendment is really put down to probe the other points I have mentioned, neither of which the Minister has dealt with.
How will this work in practice? How will the landlord establish that a dwelling has at all times since the commencement of the Act been provided with standard amenities?
Perhaps the hon. Gentleman will take up with his noble Friend the question of whether there is provision in the Bill for appeal against the refusal of the local authority to entertain an application under the Clause, in contrast to the provisions for an appeal to the sheriff against the refusal of the issue of a certificate which has been entertained.
Those are two points that I ask the Minister to consider very seriously, because they seem to me to be shortcomings in the Clause.

§ Dr. Dickson Mabon
On the second point, I will willingly write to the hon. and learned Gentleman again. But on the one hand he endorses the principle and on the other he moves the Amendment, and that is not possible.

§ Mr. Wylie
I was about to ask leave to withdraw the Amendment. I thought that I had made clear that there are two problems, and I ask the Minister to consider these points.
I accept the validity of the principle, and endorse it, that the tenant must be safeguarded. My concern is whether this can work. Will the Minister think about this and consider whether there is any provision for appeal against refusal to entertain an application as distinct from the provision for appeal against refusal to issue a certificate?
I beg to ask leave to withdraw the Amendment.

Mr. Deputy Speaker
The next Amendment is Government Amendment 185 No. 26, with which we may discuss Government Amendment No. 27 and Amendment No. 28, in page 28, line 3, leave out 'before considering it' and insert 'forthwith'.

§ Dr. Dickson Mabon
I beg to move Amendment No. 26, in page 27, line 42, leave out from the beginning to 'shall' in line 43 and insert: (4) As soon as a local authority have received an application for a qualification certificate they. The two Government Amendments fulfil an undertaking I gave in Committee that we would consider the suggestion made by the Opposition that the Bill should make it clear to local authorities that they must deal with applications for qualification certificates without undue delay. Amendment No. 26 amends subsection (4) by requiring the local authority to send a copy of the application to the tenant as soon as it receives the application instead of before considering it.

§ Mr. Wylie
We are grateful to the Minister for moving those Amendments. They entirely meet the point raised in Committee. I recognise, as I have on many occasions, that the Minister's expert drafting is almost invariably superior to ours, and I shall not seek to move Amendment No. 28 in preference to the Government Amendments.