HC Deb 04 March 1986 vol 93 cc210-7

'In the Housing (Homeless Persons) Act 1977, in section 1(2), after paragraph (c) there shall be inserted— (d) it does not provide the ordinary facilities of a residence and it is inappropriate for his needs, or it is unreasonable for him to continue to live in it". In section 4 there shall be inserted after subsection (6):— (7) Where a local authority has a duty under subsections (4) and (5) above tO either secure that accommodation does not cease to be available or to secure that accommodation becomes available for the applicant 'accommodation' shall be defined as a separate dwelling house that shall confonn to section 89 of the Housing (Scotland) Act 1966 and section 14 of the Housing (Scotland) Act 1974".'.—[ltir. Dewar.]

Brought up, and read the First time.

Mr. Donald Dewar (Glasgow, Garscadden)

I beg to move, That the clause be read a second time.

This is an extremely important clause, and I regret that considerations of time means that we cannot have .as full a debate on it as we might have liked. I am anxious that we should have the opportunity to sketch in the anxieties that are felt about certain judicial happenings in recent times in connection with the Housing (Homeless Persons) Act 1977. We may have the opportunity of hearing the Minister give some reassurances about, or at least careful Government consideration of, the consequences of what has happened.

I am referring to the judgment of Lord Brightman in the interesting and recent case of Puhlhofer v. the London Borough of Hillingdon. That judgment was delivered on 6 February 1986 and is therefore hot off the judicial press. It may sound a long way from Scotland and the Housing (Scotland) Bill, but it is a House of Lords judgment and it interprets the term "accommodation" as used in the 1977 Act. It therefore has distinct and important consequences for local authorities in Scotland, and, more important, for homeless people or those who may become homeless in Scotland.

The Puhlhofer case can be described, in view of the facts, in a short compass. The couple had a complicated history, but the material fact is that when the courts started to consider their predicament they were asking for assistance under the Housing (Homeless Persons) Act 1977. At the time they were living in bed-and-breakfast accommodation. A husband, a wife and two young children were living in one room in a bed-and-breakfast establishment. That room contained a double and a single bed, a baby's cradle, a dressing table, a pram, and a sterilisation unit. All that had certain repercussions on their limited income from social security benefits.

When the family applied for homeless persons status, the London borough of Hillingdon told them that it had accommodation available for occupation, but that it did not need to offer help under the 1977 Act, because the family had accommodation. That is an unsatisfactory and reactionary view, considering the difficult circumstances in which the family were placed. Therefore, it was decided to take the matter to court to test the judgment by judicial review. Lord Brightman handed down his judgment on that case.

The case raised two questions. The first related to when someone is homeless, — that is, when a person has accommodation of a sufficient standard to allow a local authority to say that he is not homeless. The second question related to what accommodation was in terms of what is provided under the 1977 Act. If one becomes homeless, what must the local authority offer? What amounts to accommodation to satisfy the terms of the 1977 statute?

I do not want to criticise unnecessarily, but I am disappointed at Lord Brightman's approach. He stated that the Homeless Persons Act is not an Act which imposes any duty upon a local authority to house the homeless … It is an Act to assist persons who are homeless, not an Act to provide them with homes. That may sound like a semantic argument, but it gave rise to some unfortunate consequences in his Lordship's mind. He continued:

In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word 'accommodation' in section 1 or section 4 of the Act, and none is to be implied. The word 'appropriate' or 'reasonable' is not to be imported. Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of part II of the Housing Act 1957. It is extraordinary that the judge should take the view that because the words "appropriate" or "reasonable" were not specifically included in the Act, accommodation does not cease to be accommodation merely because is it unfit for human habitation. One could argue that one could discharge one's duty under the 1977 Act by putting people in accommodation which is genuinely and literally, in terms of the statutory requirements, unfit for human habitation. That is too broad to leave unchallenged, and too dangerous to remain as the considered judgment of the courts' interpretation of the 1977 Act.

Lord Brightman continued: There are no rules. Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation … it would be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act. He then said that anything short of living in a barrel would do, that it was a matter entirely for local authorities, and that no other standards should be imposed or expected.

The judgment could have alarming consequences, and is unsatisfactory. Will the Minister give the Government's view on that line of reasoning? Do Ministers think that it is satisfactory? Where does the judgment lead? In view of the judgment, what is the standing of the Scottish code of guidance under the Homeless Persons Act 1977? The House will remember that the code asks local authorities to bear in mind the relevant provisions of general housing and public health legislation", and stresses that the basic need of families is for self contained accommodation. In those two examples the code appears to interpret the word "accommodation" and to make some sensible suggestions about a local authority's duty under the Act. Lord Brightman's reasoning clearly undermines the code of guidance and may leave local authorities in doubt about where their duty lies. It is important that the Minister makes it clear where the Government stand on that.

7.45 pm

The new clause is comparatively simple and is tabled specifically to highlight that point. It is no secret that Shelter prepared the brief and drew the matter to our attention. I am grateful to Shelter for doing so, because without that it might have been a long time before we came across Lord Brightman's thoughts on the subject. We may have done so only when they started to have unpleasant, unwanted consequences north of the border.

The Minister will be aware that the new clause has all-party support. The hon. Member for Edinburgh, Central (Mr. Fletcher), asked me specifically to say that he had put his name to the clause. He would have liked to attend the debate, but unfortunately, he had to go to his constituency. He wanted to record his support for the anxiety that I have mentioned.

As the Minister, who is a member of the Faculty of Advocates, knows better than I do, a House of Lords judgment in a civil area has relevance in Scotland. Indeed, it is highly persuasive. I noticed, sadly, that the judgment was endorsed by Lord Keith of Kinkel and Lord Mackay of Clashfern who are in the Scottish legal world. The judgment will undoubtedly lay down a standard which will be difficult for the Court of Session to ignore in a judicial review on an application concerning the 1977 Act. That is why I am so anxious to debate the matter.

One of the genuinely alarming features of the judgment is Lord Brightman's remarks about judicial reviews. He said: My Lords, I am troubled at the prolific use of judicial review … And I express the hope that there will be a lessening in the number of challenges which are mounted against local authorities who are endeavouring, in extremely difficult circumstances, to perform their duties under the Homeless Persons Act. No one wants frivolous applications to the courts, but we have come down a long and difficult road, most of which has been signposted by Brown v. Hamilton district council —that interminable Jarndyce v. Jarndyce performance—when we tried to establish the importance and availability of judicial review. The Minister will join me in paying tribute to the efforts that were made, particularly by Lord Drumpark, to evolve a new procedure which allows judicial review to be less of a legal marathon and obstacle race.

I hear reasonably encouraging reports of the new procedure in Scotland, so I hope that in passing the Minister will distance himself from Lord Brightman's expressions on the subject. It is important that on such a basic matter as this people should be free to go to the courts if they feel that the administrative discretion allowed to local authorities under the Act has been abused.

I hope that I have said enough to set out the limits of the argument. Shelter's brief talks of serious inroads into the duties of local authorities", and points out that having taken legal advice it believes that the Homeless Persons Act will cease to have any practical use for homeless people. That may be overstated. I hope that most local authorities will continue to take a responsible view, to take the common-sense meaning of the word "homeless", and to offer decent accommodation to those in that position. I hope that the loophole opened up by Lord Brightman will be ignored in the vast majority of cases. I hope that the Minister will at least show that he agrees with the general trend of my attack and that if the Government cannot accept the new clause — I accept that it will require consultation — consultation will be put in hand and positive efforts will be made to find a solution which will ensure that Brightmanship does not break out in Scottish housing.

Sir Russell Johnston

I support what the hon. Member for Glasgow, Garscadden (Mr. Dewar) has said. Nevertheless, I shall take the opportunity to give one more quotation from the past which the hon. Gentleman did not give but which I think is apposite. He referred to the case of the Hamilton district council v. Matthew Brown, in which Lord Justice Clerk Wheatley stated: I reject the argument that as long as accommodation was available it did not matter what the nature of the accommodation was. In my view it must be reasonable accommodation in all the circumstances. A pig-sty could be accommodation but not reasonable accommodation. That was qualified afterwards by Lord Fraser when he said that a distinction might be made between temporary and long-term accommodation. However, in either case, it was fundamental in determining the Scottish code of conduct.

I should particularly like to know to what extent the Brightman decision has any effect on the position in Scotland. As a signatory to the new clause, I accept that the wording may not be perfect, but I think that both sides of the House would welcome an intimation from the Minister that he will take the problems into account and, if so required—I do not know whether it will be—will introduce legislation to prevent Brightmanism from becoming the law of the land.

Mr. Gordon Wilson (Dundee, East)

As we have been discussing some legal judgments, perhaps the best thing that I can do is to say that I concur with the remarks of the hon. Member for Glasgow, Garscadden (Mr. Dewar). However, I will make a short observation of my own to add to the argument that he has lucidly put forward.

One of the difficulties of using a common brief is that the quotations tend to be used up during the early stages of a debate and afterwards there is repetition, but I would like to mention Women's Aid. I agree with the hon. Member for Garscadden that any responsible or sensible local authority would use its discretion and would follow the code of practice and rehouse those who were homeless. I should be surprised if many local authorities fell out with that aim. We have to return to the original case involving Matthew Brown, in which a local authority did not respond and a judicial review was necessary. Equally, in the case of the judgment we have just heard, a local authority again was not prepared to rehouse someone in suitable accommodation and, accordingly, a request was made for a judicial review.

Along with other hon. Members, I have received a letter from Scottish Women's Aid. It wants me to point out that it is worried about the situation. In many cases women who leave their husbands, perhaps after having been battered, go into temporary accommodation. If one follows the judgment in the Puhlhofer case, the temporary accommodation which they moved into could prevent them from gaining adequate accommodation in terms of the Housing (Homeless Persons) Act 1977. It was found necessary to pass the Act in 1977, so obviously there must have been a need for it.

I also received some information from Shelter about the position in Dundee. It gave me two quotations, one about a women's refuge in Dundee where there were Two flats within one building. One flat had two bedrooms, each of which can house a mother and her children. The occupants share two toilets and one bathroom. They all share one small cooker in the kitchen. That accommodation might debar someone from obtaining suitable accommodation.

The second quotation was about a night shelter in West Bell street, in Dundee. That accommodation consisted of a single dormitory for up to 26 people. They share one bath and one shower. There are two toilets. No cooking facilities. However, under the judgment in the Puhlhofer case, that, too, might debar those who are in that accommodation from their rights under the Housing (Homeless Persons) Act 1977. I do not think that that is reasonable.

We have good grounds to be critical of the House of Lords because, in the original case of Hamilton district council v. Matthew Brown which the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) quoted, the criteria which were adopted by the Lord Justice Clerk were very sound. He looked at the nature of the accommodation and I think that that is the most reasonable way of doing it. That statement was qualified subsequently, as the hon. Member for Inverness, Nairn and Lochaber said, in the House of Lords, but the definition adopted by the Law Lords was better than that enunciated in the Puhlhofer case.

I understand that in Scotland, from the beginning of April, the legislation bifurcates between Scotland and England and Wales. If that is so, we can take advantage of this debate to put the law back to where everyone thought it was in 1977 and as was subsequently defined in the case of Hamilton district council v. Matthew Brown, which was the first case to interpret in 1981 the Housing (Homeless Persons) Act 1977.

Those of us who have had the matter drawn to our attention are grateful to be able to bring it to the House at this stage in the Bill. I always appreciate the difficulties that Ministers may have in finding a legislative vehicle which will allow them to repair legislation which may have been savaged or mauled in the courts. In this case, we have a highly suitable Bill and, given the decision In the House of Lords, it would be very influential, if not binding, on the Scottish courts, especially in view of the concurrence of the two Scottish Law Lords.

I hope that the Government, through the Minister today, will correct the situation. I would not be happy if he were to say that, because the voluntary code is still in existence, it will adequately deal with the problem. That code of practice followed upon a statutory obligation which appeared in the Housing (Homeless Persons) Ace. If the Act has holes knocked in it, statutory obligations become worthless. If that happened, the code would be neutered, and I do not think that anyone, including the Minister, would like to see that happen.

Mr. Ancram

I have listened carefully to the views expressed in this debate. Hon. Gentlemen may be assured that their concerns have been noted and I intend to consider them. Hon. Gentlemen will appreciate that it is not for me to comment on the decision of the Law Lords, although we will give careful thought to the implications of the judgment.

The decision illustrates some of the general principles underlying the Housing (Homeless Persons) Act 1977. When a person presents himself as homeless under the Act, the local authority is required to look into the circumstances of his case, but the authority then has the discretion, having regard to the code of guidance issued by the Secretary of State, to reach its own judgment on whether the person is homeless and whether he falls into one of the priority need categories. Therefore, the purpose of the Act is to regulate the function of the local authority with respect to persons who are homeless or who are threatened with homelessness.

In allocating houses, local authorities have to deal with difficult decisions as to needs and priorities and to balance competing claims for the resources available. I have tremendous sympathy, as I think we all do, with a family living in overcrowded conditions. Their needs may require to be assessed alongside other applicants on the authority's waiting list who may be in equally difficult positions. An example is an elderly couple whose house suffers from dampness and condensation who may not be termed as homeless, but who may equally have a good reason for seeking a transfer. It is fair to say that the Act is primarily intended as a safety net for people who do not have a roof over their heads. It is important that it should not become a means at the other end of the scale by which other people, however deserving, can bypass the authority's normal rules for allocating houses according to its Members assessment of need.

Mr. Wilson

The hon. Gentleman has chosen an interesting example. Does he have any evidence that such an abuse of the housing rules has taken place? My experience in Dundee is that, when someone is homeless, a house is made available, but it is rarely in one of the higher amenity districts.

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Mr. Ancram

I hope that the hon. Gentleman did not misunderstand me. I was saying that the present position, which, to a large extent, gives local authorities discretion, would effectively allow local authorities to make proper judgments. This raises a marker about the potential dangers of looking for a statutory definition.

Having set out the general background, the decision of the Law Lords—that "accommodation" in section 1(1) of the Housing (Homeless Persons) Act 1977 does not mean "appropriate" or "reasonable", as the hon. Member for Glasgow, Garscadden (Mr. Dewar) said, but merely accommodation that can properly be described as such within the ordinary meaning of the English language—has implications. I should like to consider those implications further. I should like time to consider the report of the decision more carefully than any of us have been able to do so far. This is a matter on which I think it would be appropriate that I should consult my right hon. Friend the Secretary of State for the Environment.

The decision concerned an English case and an Act which has application in Great Britain. I am advised, as the hon. Member for Garscadden suggested, that it would almost certainly be followed in Scotland. Clearly, there are implications for the whole of Britain which need to be looked at together. I do not believe that there is a strong case for importing a definition of "accommodation" into the Housing (Homeless Persons) Act for Scotland which may differ from that for England and Wales. I think that, in this respect, it makes sense to keep in step.

Mr. Dewar

I understand that the code of guidance is issued under the Act. Lord Brightman could not consider the code of guidance, for understandable reasons. Does the hon. Gentleman believe that that Scottish code of guidance is still binding on local authorities and that they are expected to observe its conditions, as before?

Mr. Ancram

I hope that the hon. Gentleman will allow me to come to that point. I can confirm that the code of guidance is referred to in the Act, although not necessarily in specific terms. Section 12 of the Housing (Homeless Persons) Act provides: In relation to homeless persons and persons threatened with homelessness a relevant authority shall have regard in the exercise of their functions to such guidance as may from time to time be given by the Secretary of State. That is the statutory basis.

I think that the Opposition will accept that the new clause could give rise to problems of its own. They are seeking by it to provide that, where an authority has a duty to secure accommodation, it shall take the form of a separate dwelling house which conforms to the statutory provisions relating to overcrowding and the tolerable standard. I sympathise with the intention, but I believe that we must be careful not to impose unrealistic duties on local authorities. Where the Act places an obligation on an authority to ensure that accommodation is available, it is for the authority to decide how best that obligation can be met.

Chapter 4 of the code gives some guidance to local authorities. In particular, it recognises that there may be cases where, as a last resort, authorities need to arrange accommodation in lodgings, guest houses or hotels. It is made clear, however, that this is to be a last resort and that such accommodation should be for as short a period as possible. I do not think that we can entirely rule out such accommodation as a temporary solution, which would appear to be the present effect of the new clause.

The hon. Member for Garscadden referred to the implications of the decision on section 4 in so far as it placed a duty on local authorities to secure accommodation for certain homelesss persons. At present, the code of guidance states explicitly in paragraph 4(15) that bed and breakfast accommodation is not to be regarded as appropriate permanent accommodation. Even as temporary accommodation, it is to be used as a last resort or for as short a time as possible.

What the code of guidance has to say about accommodation in respect of local authority duties under section 4 may still remain relevant. I do not necessarily accept Shelter's contention that it is overturned by the decision of the House of Lords. That is a matter of some doubt and one of the matters on which I should like to take legal advice and make an assessment. The position is complicated. This and other aspects must be given further consideration.

I assure hon. Members that I intend to give full and careful consideration to the implications of the decision. I shall want to consult and to hear the views of interested organisations. As part of that process, yesterday I met representatives of Shelter (Scotland) who set out their anxieties to me. I hope that, in the light of my assurance that I intend to give this matter consideration and to consult, the hon. Member for Garscadden will withdraw the motion.

Mr. Dewar

I think that the Under-Secretary of State has persuaded me that we should not push the new clause.

It would be unreasonable to do so. This matter must be carefully considered and we must ensure that we obtain the right answer.

I take at face value—I am sure that I am entitled to do so—the hon. Gentleman's assurance that consultation will be put in hand urgently, that he will consult interested bodies and take his own legal soundings on the impact of the judgment on Scotland. Clearly, that will take some time and it will not be possible to catch up with this question if action is needed during the passage of this legislation. If the advice is that the code of guidance has been undermined or set aside by the House of Lords' judgment, I hope that the hon. Gentlman will not hesitate to take steps to reinstate it or to ensure that there is a reasonable framework within which local authorities can exercise their duties. If that requires some form of legislation, I am sure that all the Opposition parties would be anxious to accommodate it, assuming that there was general agreement on the necessary steps.

Mr. Maclennan

I agree with the hon. Member for Glasgow, Garscadden (Mr. Dewar) that the Under-Secretary of State has been very forthcoming, but he has not said what was his understanding of the law before the case. It would have been helpful to know whether the Government's understanding was in line with Lord Brightman's view. It certainly was not my view, and I doubt that it was Parliament's when the legislation was put on the statute book. In light of the fact that the Under-Secretary of State is obviously seized of the urgency of meeting the inquiries that will undoubtedly come from local authorities as to where their duties lie, I think that it would be wrong to press him further.

Question put and negatived.

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