§ 3.25 p.m.
§ The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk) rose to move, That the draft Housing (Homeless Persons) (Appropriate Arrangements) Order 1977, laid before the House on 24th November, be approved. The noble Baroness said: My Lords, this draft order is about machinery. It is to establish the arrangements that are necessary to settle matters if, or when, a dispute arises between two housing authorities as to which of them should accept responsibility for securing that accommodation is available to certain homeless people. Your Lordships may be aware of the contents of the report made in respect of the draft order by the Joint Committee on Statutory Instruments. The points to which the Joint Committee draw attention are matters to which I would have referred anyway in introducing the draft order, and I will do so in the course of my remarks.
§ We are dealing with provisions introduced into the Bill in direct response to the wishes of Parliament. When the Bill was in progress considerable concern was expressed, both here and in another place, about the potential obligation on authorities to have secure accommodation for people who could demonstrate no reasonable connection with the 1867 area of the authority to whom they turned for help. Section 5 was therefore introduced into the Act to deal with this situation. This section provides that where an authority are satisfied that a duty arises under the Act to secure that accommodation is available for a particular homeless household yet they are of the opinion that no member of the household has a local connection with their area, but that a member of the household does have a local connection with the area of another authority and that no member of the household runs the risk of domestic violence in that other area, they may notify the other authority and the duty to secure accommodation may then transfer to that other authority.
§ I myself would hope and expect that most cases will be settled in just that way by agreement between the authorities. After all, the issues are essentially matters of fact. But the section goes on to provide that if any question has to be settled under Section 5, it is to be settled in accordance with the "appropriate arrangements" and that these are to be such arrangements as the Secretary of State directs. This draft order is about those arrangements. I may add at this point that the Act says nothing to require or suggest that the Secretary of State himself should be involved in those arrangements, but it does require that they are arrangements agreed by the associations of relevant authorities and enables my right honourable friend to bring forward arrangements of his own only in default of such agreement. He would not of course wish to bring forward arrangements which did not seem to him to be suitable, but the draft order that he has laid before this House gives effect to arrangements agreed by the associations and which he would wish to commend to this House.
§ At this point I should like to add my own tribute to the appreciation already expressed by my honourable friend in reply to a question in another place, by placing on record my own very warm appreciation of the contribution of the associations both in the development of the arrangements set out in the draft order we are discussing today, and also, secondly, in producing together what I may perhaps call a code of conduct for 1868 authorities for handling cases under Section 5—a code which they have already sent to authorities giving advice on detailed practical points, such as the detailed arrangements for making notifications about which authority should bear any cost of temporary accommodation.
§ What, then, the draft order does is to require the appointment of an "adjudicator" to determine any issue under Section 5. It leaves it open to the authorities concerned to agree a suitable person if the need arises; but it goes on to provide that if they cannot agree a suitable person themselves they should report the matter to the chairman of the relevant association. For example, where one of the authorities is a non-metropolitan district council, that authority would report their failure to agree an adjudicator to the chairman of the Association of District Councils. The chairman would then appoint an adjudicator who would be drawn from a panel appointed and maintained by the associations. When the authorities are both members of the same association then the chairman of that association will make the appointment; if they are members of different associations it will be for the two chairmen to agree who should be the adjudicator. In the highly unlikely situation that the chairmen could not agree, each will then nominate a candidate and the selection would be settled by lot.
§ The Joint Committee have suggested that these arrangements represent an unexpected delegation. They do not in fact represent delegation at all—and I believe that it was in the minds of Members both of this House and another place that the arrangements for settling disputes should be made by local government. I believe that that is right and is what Parliament wanted. I do not think there is any risk of bias. The associations see no risk that an adjudicator will favour one authority rather than another. They are currently discussing detailed arrangements for the proposed panel in the expectation that the draft orders will receive the approval of Parliament.
§ The associations are intending to appoint a small panel of people of standing and integrity who have a good understanding of local government and who will command confidence. Parliament entrusted 1869 the associations with the responsibility for agreeing the arrangements to be made, and surely Parliament will not now say that we cannot trust those same associations to appoint a fair-minded panel. I am reinforced by my knowledge that the associations are indeed producing guidance to give to adjudicators which ought to resolve any anxieties that may be felt about impartiality.
§ There is, of course, concern about the use of "lot". This is unusual, but it is not unique; I can mention two precedents which were in fact mentioned to the Joint Committee: one under the Representation of the People Act 1948, where after recounts there is an equality of votes between candidates either for Parliamentary or local elections; and another under the provisions of the Companies Act 1948 which deal with the question of which directors should retire. I very much doubt, however, whether a resort to lot will ever arise, nor do I see any danger that others will regard it as a precedent where suitable alternatives are available. It is only put in as a necessary long-stop. I expect that the associations' chairmen will be able to agree an adjudicator, and they regard that as their function. But, hypothetical though this case may be, we are advised that it is necessary to make some provision to cover a disagreement between the chairmen on this point, and that it should be a provision leading to a clear result that need not be disturbed unduly when the Act comes into force in all three parts of Great Britain.
§ We must remember that it may be necessary to resolve a dispute about the appointment of an adjudicator in a case involving the chairmen of associations in respect of authorities in England, Wales and Scotland. We had considered whether this could be a function of the Secretary of State. But we were advised that we could not specify in the order which Secretary of State this should be in the case, for example, of a dispute between a Scottish and a Welsh authority. We have considered other alternatives. The Lord Chancellor was considered and his office was consulted. But he has no functions in relation to Scotland.
§ The provision now contained in the order was proposed by the associations 1870 themselves as the best answer in the circumstances, and if the need ever arises they are content that their member authorities should rely upon the result of the lot in determining the adjudicator. There is, of course, nothing arbitrary whatsoever in the selection of the panel of adjudicators, all of whom will be people of integrity, or in the procedure that the adjudicator, once selected, has to adopt.
§ The order provides that the adjudicator's decision, whether he was appointed by agreement or by the chairmen, is to be binding on both authorities. We have, with the associations' agreement, sought to keep the procedure as flexible as possible. The issue indeed may be limited to a particular question of fact. It is for the adjudicator to determine how he should best proceed. This also has attracted comment from the Joint Committee, but I hope members of that Committee will understand my concern that the adjudicator should have regard only to matters that are relevant and proper. We must remember that during the course of a dispute the homeless household is, during that whole time, in temporary accommodation, anxiously waiting to know where accommodation is to be provided. Therefore, as far as possible, we want a quick and simple procedure, and not a great drawn out bureaucratic machine.
§ I appreciate the Joint Committee's concern about the opportunity for the household to participate in the procedure, and have indeed discussed that myself with officials in my Department, and the order contains provisions on this consistent with the main Statute. Parliament, let us remember, did not give the household a right of appeal in respect of decisions reached by the housing authority, nor did the Act give any right to make any representations where authorities agreed between themselves which should be responsible for securing accommodation under Section 5 without the intervention of an adjudicator. In the circumstances, I hope your Lordships will agree that the provisions of the order strike a very apt balance, by enabling the adjudicator to receive representations from any persons he thinks can help him, and by requiring him to take account of the representations of the authorities concerned, and to invite the household concerned to submit 1871 information—for example, about their circumstances and places of residence.
§ This order will apply in England and Wales only. The Act does not come into force in Scotland until 1st April 1978. The Convention of Scottish Local Authorities are being consulted about matters relating to Scotland. A fresh draft order with arrangements to deal with disputes with Scotland, and also disputes between English and Scottish or Welsh and Scottish authorities, will be laid before your Lordships' House in due course.
§ Therefore, my Lords, the draft embodies arrangements in response to concern expressed by Parliament; these arrangements have been agreed by the associations themselves. The draft order also embodies arrangements which enables disputes to be settled quickly and without unnecessary or protracted discussion. I hope this machinery will seldom need to be used, but it is necessary as a safety net. I commend the draft order to the House.
§ Moved, That the draft Housing (Homeless Persons) (Appropriate Arrangements) Order 1977, laid before the House on 24th November, be approved.—(Baroness Birk.)