HC Deb 20 May 1980 vol 985 cc310-9
Mr. Alton

I beg to move amendment No. 167, in page 23, line 18, leave out from ' begun ' to end of line 19.

This is a simple amendment, which I hope the Minister will consider carefully. If he is unable to agree to it now, I hope that he will have another look at it between now and when the Bill is debated in another place. It relates to the provision in clause 33 whereby a local authority which wishes to take possession proceedings against a secure tenant must give notice of the proposed grounds for possession before so doing. As presumably the purpose of serving such a notice is to enable the tenant to remedy any alleged default before proceedings are served, if a local authority can change its ground after service of the notice, there is always the possibility of a tenant being taken by surprise at the hearing when the action is being taken against him. Thus, he will not have the opportunity to put right the new matters about which the complaint is made.

Possibly one could trust the court to exercise discretion in order to ensure that the tenant is given the opportunity to put matters right, but that is not particularly satisfactory. It goes against every tenet of natural justice that a tenant arriving at the court should find that the landlord has decided to change the reason for taking action against him. The ground should be quite clearly specified before the tenant arrives in the court.

It does not improve the Bill to leave in the offending words. This is possibly a Draconian measure which could be misused by some local authorities. I hope that that would not occur, but tenants could be placed in the position whereby they did not receive their natural rights of justice when they appeared in court. I urge the Minister to give an undertaking at least to look at this matter between now and the next discussion on the Bill. I might be prepared to seek to withdraw the amendment if I were to receive that undertaking.

Mr. Geoffrey Finsberg

I cannot be as helpful to the hon. Member for Liverpool, Edge Hill (Mr. Alton) this time. I hope that when I have explained the matter to him he will appreciate why.

The hon. Gentleman's amendment would remove what the Government believe is a sensible provision that allows a landlord, with the leave of the court, to add to or alter the ground for possession specified in the notice that a landlord seeking possession will have to serve under clause 32. Without that provision the landlord could not do so without going through the process of serving a new notice and possibly being subjected to delay.

Imagine the situation where leave is sought to add to or alter the ground. A tenant may have been given a notice stating that possession is being sought because his conduct has been a nuisance to neighbours under ground 2 of schedule 4. The tenant may then fall into rent arrears. Clearly it is right that the court should be aware of that and consider those issues together.

The requirement that the court's leave must be obtained will ensure that a tenant's rights are protected and that he is given sufficient time to prepare his case where a new ground has been added or substituted.

Mr. Alton

There may be other factors that the court should take into account when considering reasons for possessing property. However, if a tenant is preparing his case on the basis that he has been a nuisance to a neighbour, it is unfair to spring a further reason on him, such as rent arrears, when he arrives at court. I have chaired local authority eviction sub-committees and I know that a tenant is sometimes not aware of rent arrears. He may, for instance, have left his wife to pay the rent, and she may not have told him of financial problems.

Mr. Finsberg

I repeat that the requirement that the court's leave must be obtained will ensure that a tenant's rights are protected and that he is given sufficient time to prepare his case where a new ground has been added or substituted. The hon. Gentleman may have missed that point when he was trying to intervene.

The protection is there. It would be wrong to remove that possibility from the Bill, which may then mean two court cases with resulting delay. I do not believe that the hon. Gentleman would want that. The court's involvement in the procedure safeguards the tenant's interest. I therefore hope that the hon. Gentleman will ask leave to withdraw his amendment.

Amendment negatived.

Mr. Tilley

I beg to move amendment No. 51, in page 23, line 25, leave out '13' and insert '14'.

I am confident that this amendment fits precisely into the Bill at precisely this point.

We do not lightly suggest new grounds for evicting council tenants. However, local authorities need flexibility and speed to deal with cases of divided families, particularly women with children who have been deserted or have left home because of violence. The Minister said yesterday: the Bill deliberately does not interfere with local authorities' allocation procedures … We believe that it is right that the local basic responsibility for this sort of allocation should be that of the local authority."—[Official Report, 19 May 1980; Vol. 985, c. 132.] The Bill interferes with the ability of local authorities to decide their allocation policy in such circumstances. The security of tenure provision means that local authorities cannot take the swift and compassionate decisions that they have been able to in the past. Clause 36 also states that a local authority tenancy can only be assigned under the Matrimonial Causes Act. That is a method of dealing with the problem of a divided family in the medium term, but the process can take months and in some cases years. It does not apply if the couple are not legally married.

6.15 pm

Clause 36 and the general security of tenure in the Bill remove flexibility from local authorities and, also ignore the changes in society, such as the increased number of divorces, of people living together who are not married and of women who are not prepared to tolerate violence at home. Women leave their homes, which in many cases are owned by local authorities, for their own sake and the sake of their children. Under the Bill such women will be under considerable pressure to return to a violent home. Alternatively, they will not be provided with suitable local authority accommodation with the speed necessary for the family to succeed in the new circumstances.

I quote two decisions made by a South London borough—not the borough of Lambeth—which would not be possible under the Bill. In the first case, the husband was a heroin addict, violent towards his wife. She left with the children and went to stay with her mother. She began divorce proceedings in August. In October, well before the divorce was settled, the local authority committee decided that the husband should be asked to leave and the tenancy given to the wife. The second case concerned a husband, wife and two daughters, aged six and seven. The woman left home because of violence, and lived with various friends for a year. She was then admitted to homeless family accommodation. The committee decided to give the sole tenancy to the wife and make and offer of a one bedroomed tower-block flat to the husband. Those decisions were swift and compassionate. Under the Bill the council would not be in a position to regain possession of the family home, even though only one spouse, usually the man, would be there on his own. That family house, of which there is a shortage, would therefore be grossly under-occupied.

Where the council is willing only to rehouse the spouse and children in the original home, it will be unable to evict the remaining spouse. Even if there were an injunction under the Domestic and Matrimonial Proceedings Act, there would be a long gap between the end of such an injunction, which courts have clearly stated can only be temporary, and settlements under the Matrimonial Homes Act. If the couple were not legally married, there could be no action under the Matrimonial Homes Act.

A council that cannot get possession of the original home may be reluctant to accept the wife and children as unintentional homeless under the Housing (Homeless Persons) Act. There may be pressure on the family to return to the original home or for the children to be taken into care. That sort of thing is happening at the moment.

The problem in explaining the consequences of the Bill is that the practices of local authorities in such matters differ considerably. Some councils are much more sympathetic than others. If the new ground is not included, the good authorities will stop taking the beneficial actions that they take at present and the comparatively bad authorities will have an excuse to refuse to meet their obligations under the Housing (Homeless Persons) Act.

We ask the Government to accept an extra ground for eviction by local authorities, even though we do not like undermining the principle of security of tenure for local authority tenants. If the amendment is not accepted the Bill will take away an important discretion of local authorities—a discretion that, however they exercise it, must tend to be to the benefit of those involved, who are often women and children at a crisis point who need as much help as possible, not only from local authorities, but from all the statutory organisations involved.

Mr. Michael Shersby (Uxbridge)

I listened carefully to the hon. Member for Lambeth, Central (Mr. Tilley) and I am a little concerned that his amendment would prejudge the decision of the court. Such cases are difficult, particularly with a couple who live together but are not married. The amendment would give to habitees equal rights with those of a divorcing spouse.

Mr. Tilley

I am not trying to intro duce changes; I am trying to preserve the present situation in which the majority of local authorities take such decisions either when the custody issue has been resolved or when it is clear which way it will be resolved. I am not suggesting that local authorities should change what they are doing, but that they should be allowed to continue to do what they do at present.

Mr. Shersby

I take the hon. Gentleman's point, but we are entering a difficult area. Local authorities have a great deal of discretion, but if we add the amendment to the Bill, we shall create a statutory ground for possession for this group of people. The existing arrangements are generally adequate, particularly when the court is involved and can make corrections.

Mr. Geoffrey Finsberg

We should not lose sight of the point made by my hon. Friend the Member for Uxbridge (Mr. Shersby). There is a progression in these matters and it would be unfortunate, to say the least, if we found that by incorporating the amendment we got a step ahead of the courts. That would be undesirable.

The hon. Member for Lambeth, Central (Mr. Tilley) made important points about battered wives, violence and injunctions. I am advised that an injunction to allow the wife back into the home is temporary, but it can be repeated until the divorce, when the court can transfer. Part of the hon. Gentleman's fear is covered.

The hon. Gentleman has tried to convince the House that there are good reasons why public sector landlords should have available a ground for possession that they can use to ensure that the tenancy of the former matrimonial home goes to the "right" party—that, in itself, raises a query—when the marriage or the partnership breaks up or to evict a tenant when the remainder of the family has been rehoused elsewhere.

The amendment would give those landlords an extraordinary responsibility. It would give them the right to judge, in advance of a court decision about the outcome of a marriage and questions of custody and property, who should be allowed to remain in the matrimonial home.

I am told that landlords might normally reallocate the home to the spouse who has custody of the children, but who is to know what the final custody arrangements will be? I am not satisfied that local authorities and other landlords would want to be put prematurely in a position of formally ordering the accommodation arrangements of separated families unless the parties agreed voluntarily about the tenancy of the former home—in which case, no special ground for possession would be needed.

Mr. Tilley

The hon. Gentleman is not recognising the point that I made in an intervention when the hon. Member for Uxbridge (Mr. Shersby) was speaking that we are not talking about giving local authorities extra abilities to decide, but are saying that they should be able to have the existing rights that they have exercised many times.

The hon. Member for Liverpool, Edge Hill (Mr. Alton) referred to what is called openly the eviction sub-committee in Liverpool. Many housing committees have similar sub-committees, though they are usually called, more diplomatically, housing management sub-committees. I am sure that the Under-Secretary and many of his colleagues have served on such committees and taken exactly the decisions that the hon. Gentleman is saying that local authorities should not be able to take.

It has been stated clearly by judges that domestic violence injunctions are only temporary and that women cannot be certain of obtaining as many injunctions as they need to span the vast gap of the law's delay in divorce cases. In some cases women will get enough injunctions, but in some cases they will not. It depends on the judge.

Mr. Finsberg

I am not a lawyer, but my advice is that it is possible that the injunctions can be reissued by the court until the divorce takes place.

The amendment would provide a new ground for possession. It is not right to say that local authorities already have that power.

Mr. John Sever (Birmingham, Ladywood)

Presumably the Minister agrees that if a local authority is asked to make a decision in advance of a custody decision it need not necessarily do so. My hon. Friend is asking only for the provision of a framework within which a local authority could make that decision; he is not asking that it should necessarily have to do so.

Mr. Finsberg

I am not sure that I was wise to give way. By the time I finish I may have covered that point. The amendment would require two homes to be provided by a landlord whenever a family splits up. That may frequently be the outcome anyway, but I do not think that it is desirable or practical to impose such an obligation.

If the landlord chooses to rehouse the party who has left the home, or who, as a result of matrimonial proceedings has been obliged to move out, that is its business. We are not interfering with that. However, it should be a matter for the landlord's judgment—to use the words of the hon. Member for Lambeth, Central—and not for the Bill.

6.30 pm

The provisions of certain existing legislation dealing with the matrimonial home are extended to secure tenancies by the Bill. It is possible for one spouse to apply to the court to have the tenancy transferred to the other spouse, who is a tenant, but divorced or legally separated. At that stage, landlords can take the necessary steps on the basis of the relevant court judgment.

That is the crux of the point that my hon. Friend the Member for Uxbridge (Mr. Shersby) spotted immediately. This, amendment would jump the gun. I still do not believe that that is right. As I said, at that stage landlords can take the necessary steps on the basis of the relevant court judgments. Therefore, I see no case for empowering them to do so in the manner proposed by this amendment. In general, we should not provide a means whereby certain aspects of family break-up and divorce can be anticipated or prejudged.

I invite the hon. Member for Lambeth, Central to agree, on reflection, that it would be wiser to ask leave to withdraw this amendment rather than to put it to a vote, because at that stage I would have to advise the House to reject it.

Mr. Tilley

I must put the record

straight. The Minister says that this amendment would impose on local authorities a decision to rehouse both halves of a broken relationship. It does not impose anything on local authorities. It provides that they may—if they wish—take proceedings in order to move into smaller accommodation the spouse who no longer has the other spouse living with him or her. It gives a discretion to the local authority. It does not add a new power.

Before the Bill was introduced, local authorities could evict any tenant for any reason. Now there is security of tenure. In this case the Bill is consigning women and children to possible bad housing conditions for long periods, and certainly to distress and uncertainty while they wait for new housing. I hope that the Minister will accept that we are not suggesting that local authorities must rehouse as soon as a family breaks up, but that they should have the option to do so on the merits of individual cases.

Mr. Finsberg

Having listened again to the hon. Member for Lambeth, Central I find that he has not persuaded me to alter the reasoning that I put to the House earlier. Again, I invite him to ask leave to withdraw his amendment.

Mr. Shersby

Does the hon. Gentleman agree that in most cases local authorities are not currently in the habit of transferring a tenancy until marital issues—normally the custody of children—have been settled by the courts? The normal custom, according to my experience, is for the tenancy to be transferred to or be left with the spouse who has been given the custody of the children. In most cases that is the wife. That is a sensible and practical procedure, and it should not be disturbed unless the courts decide that it should be disturbed. The present position is satisfactory, because the courts will upset a decision of a local authority or transfer the tenancy to a person who does not have the custody of the children only in exceptional circumstances.

Mr. Speaker

Before I put the Question, I remind the House that I allowed what amounted to a second speech to the hon. Member for Lambeth, Central (Mr. Tilley) and the hon. Member for Uxbridge (Mr. Shersby). They were long interventions. On Report I have been very generous, as hon. Members will know.

Amendment negatived.

Forward to