PROTECTION FOR ELDERLY ORPHANS AND OTHERS (Hansard, 23 March 1983)

§ Mr. Peter Bottomley
I beg to move, That the clause be read a Second time.
This is the elderly orphan problem. It will diminish but it is acute to those who suffer. It deals with people who 894 stay at home until the age of 40, 60 or even 70, caring for elderly relations, who, when their elderly surviving parent dies, may be required to move from the council home in which they have lived for up to 50 years. It is a diminishing problem because with the right-to-buy legislation more and more families will own their home and be able to stay in it, only moving when they choose to.
At present the law is in great doubt. The only case of which I know is that of the London borough of Greenwich and Mr. Peter Hunt where the judgment was that Mr. Hunt could stay in his home but only because he had a damaged leg. I want the courts to take account of the effect on other elderly orphans being forced to move. My predecessor, Mr. Bill Hamling, helped to found the national council for the single woman and her dependants, which is now called the national council for carers and elderly dependants. If the new clause is not approved by the House, the matter will be taken up in another place where I suspect that it will be carried whatever the advice of the Attorney-General's Department on the possible defects in the drafting. There will clearly be a good attendance in another place and I believe that the Members there will transfer their attentions on charitable housing associations to the new clause to ensure that something is written in.
It is important that councils should consider that what they are doing is reasonable. In Committee the hon. Members for Manchester, Central (Mr. Litherland), Edmonton (Mr. Graham) and Bootle (Mr. Roberts), and, I suspect, the hon. Member for Woolwich, East (Mr. Cartwright) expressed much sympathy for people like Mr. Hunt and others in similar situations. I am grateful to the London borough of Greenwich for giving serious consideration to the representations made by local Members of Parliament a week or so ago. We are awaiting a review of its policy. However, if we want to be caring in the community and to make it easier for people to carry out their family responsibilities, we want to make sure that poor council tenants are in the same position as those who are able to buy their own homes and as private tenants.

§ Mr. David Ennals (Norwich, North)
I have a great deal of sympathy for the new clause. I wish to touch only on paragraph (b)— the length of residence of the tenant in the dwelling house". I do so because in Committee on 3 February, the Minister, in columns 822 and 823, castigated the Norwich city council for its policy on mutual exchange to secure the right to buy. The Minister was most unfair to Norwich council. He falsified its motives, and I wish to record its problems, which are revealing.
At least one member of the city council became aware of a practice that had emerged whereby two tenants would agree to exchange properties, and when one tenant was moving into a modernised property or into a property in a sought-after area that tenant would pay the other a sum of money—in effect, key money for the privilege of moving. Therefore, the intention was for that tenant to submit a right-to-buy application in respect of the property into which he or she had recently moved.
If that practice had been allowed to continue, it would have meant that all of the newer and more desirable council houses could have been sold off under the existing right-to-buy provisions, leaving the city without an adequate range of alternative stock to meet its other statutory housing duties. I was surprised that the Minister criticised the Norwich city council for using a provision 895 in the Housing Act 1980 to regulate and fulfil its housing obligation reasonably without being a willing party to a most undesirable practice, which I have described, and which has been described by the Norwich city council.

§ Mr. Stanley
In response to the right hon. Member for Norwich, North (Mr. Enna1s), I make it clear that the effect of what Norwich council was doing was to make a mutual exchange between Norwich council tenants conditional on their surrendering secure tenancy status. Therefore, they were surrendering their legal right to buy their homes. I regard it as indefensible that one should manipulate the wishes of a tenant to try to arrange a mutual exchange so as to deprive him or her of legal rights agreed by the House.
I am in sympathy with the intention behind the new clause tabled by my hon. Friend the Member for Woolwich, West (Mr. Bottomley). He has set out clearly why he felt that there was a possible or threatened injustice with regard to his constituent Mr. Peter Hunt. I agree with him that local authorities should adopt a sensitive and compassionate approach on a case-by-case basis when deciding whether a successor tenant should remain in a family home when a parent has died. I hope that, as a matter of policy, we would agree on that on both sides of the House.
However, although I sympathise with the intention behind the new clause, my overriding concern must be whether the new clause would, in the courts' interpretation, serve the best interest of the successor tenant. My hon. Friend has referred specifically to the case of Mr. Hunt. The case in question arose when the council served notice seeking possession under ground 13 of schedule 4 to the Housing Act 1980, when Mr. Peter Hunt's mother died.
This provides a ground to repossess where, under the succession rules set out in section 30(2)(b) of the 1980 Act, a member of the family, other than the spouse, of the previous tenant has succeeded to the tenancy and the dwelling is thereby under-occupied. Section 34(2) of the Act requires that a court shall not make the order for seeking possession unless the court both considers it reasonable to do so and is satisfied that suitable accommodation will be available for the tenant when the order takes effect. New clause 3 seeks to amplify the reasonableness test by requiring that five specific factors should be taken into account when the court considers the order for possession.
Having considered the evidence most carefully with my legal advisers, including the judgment in the Peter Hunt case, which my hon. Friend kindly sent me, the clear legal conclusion is that the new clause is not necessary and, more important, could actually work against the interests of successor tenants in some circumstances. I should like to elaborate on both points.
5.15 pm
I briefly explain the reasons for this, as I hope that it will help my hon. Friend. The case for specifying in primary legislation particular factors as to what should be taken into account in assessing reasonableness rests on the presumption that the courts may not otherwise take into account all the relevant factors in deciding whether possession is reasonable. I am unaware of any other reported decisions on possession orders in the case of 896 secure tenancies using ground 13, apart from the Peter Hunt case. However, I am advised that the court will consider every relevant circumstance in assessing reasonableness. This is certainly the position under section 98 of the Rent Act 1977 when a court determines whether repossession is reasonable, for example, in the case of a private landlord seeking repossession of a house to live in it himself under case 9, schedule 15 of the Rent Act 1977.
In the case involving Peter Hunt the court did not agree the council's repossession order because in the court's opinion suitable alternative accommodation for the tenant was not available as is required under section 34(3)(a) of the Housing Act 1980.
The court went on to consider whether, if suitable alternative accommodation had been available, it would have been reasonable to make the possession order. The court decided that it would have been reasonable. However, it would not be right to conclude that, although the court on this count said it would have found in favour of Greenwich council rather than in favour of Mr. Hunt, this means that the court ignored other factors, to which my hon. Friend referred. The judgment makes it clear that the court found the defendant's arguments relating to his personal circumstances attractive, but not sufficiently so as to outweigh the council's housing responsibilities. The judgment goes so far as to record that the court weighed everything, including factors other than those just mentioned. My hon. Friend is also recorded in the judgment as giving evidence which brought an important factor into consideration, although the nature of the evidence is not recorded.
Both in this specific case, therefore, and in the light of the considerable body of case law in repossession cases as to what courts can take into account in assessing reasonableness, I do not believe that my hon. Friend should conclude that the factors that he has specified in his new clause would be ignored by a court. It does not, therefore, seem that the new clause is necessary.
However, in addition, I am advised that to specify one particular set of factors—and there are a great many more that could be specified—is likely to work against the interests of tenants generally. Specifying factors would be likely to result in added weight being given to the specified factors and less weight being given to other factors not specified, which could be even more significant in other individual cases. The courts would be likely to conclude that Parliament's purpose in specifying certain factors but not others was to give particular stress to some factors at the expense of others.
For example, a factor not mentioned in the new clause is the health of the tenant, yet in a particular case that could be decisive in enabling a tenant to remain in his home. If we rest on the general requirement of reasonable, that factor could be regarded as being of the utmost and indeed decisive importance. However, if we were to adopt the new clause the decisiveness of the health factor could perhaps be successfully challenged by the council seeking possession because it had not been referred to in the legislation.
For those reasons, although I sympathise with the intentions behind my hon. Friend's wishes to have his constituents in Greenwich properly treated, and I agree that the council in the case to which he has referred should have been more helpful to his constituent, I am not persuaded that the new clause specifying new factors would, in the generality of cases, necessarily be 897 advantageous and helpful in achieving a fair and equitable solution on a case-by-case basis to the successor tenant problem. From my explanation, which I have made as full as possible, I hope that my hon. Friend will understand why there are good and sound legal reasons why we have not accepted his new clause.

§ Mr. Peter Bottomley
I hear what my hon. Friend says. I give him notice that in due time my provisions will pass into the statute law of the country. I suggest that he gets his advisers on to what I am after and what he has said that he is after so that what we agree upon is put into a form that he believes will not have adverse effects.
Paragraphs (a), (b) and (c) of subsection (5) are to do with the past and are not tested by the judgment in the Hunt case. Subsection (5)(e) relates to the general effect on others and care in the community. That is part of Government policy and the public good. I am willing to withdraw the new clause but I shall return to it. I suggest that my hon. Friend gets his thinking cap on, kicks his legal advisers and tells them that what the hon. Member for Woolwich, West is after is what the Minister is after, that that is what they should be after and that it should be got on to the statute book so that we can all be satisfied.
I beg to ask leave to withdraw the motion.