HL Deb 04 November 1986 vol 481 cc1026-44

2A Baroness David rose to move, That this House do insist on their Amendment No. 1 to which the Commons have disagreed, and disagree to Amendment No. 2 proposed by the Commons in lieu thereof.

The noble Baroness said: My Lords, I beg to move that this House do insist on their Amendment No. 1 to which the Commons have disagreed and disagree to Amendment No. 2 proposed by the Commons in lieu thereof.

We return to a subject much discussed in your Lordships' House, the question of the right to buy for elderly people living in houses particularly suitable for persons of pensionable age. Members on all sides of the House have shown the strength of their feelings on a number of occasions when the Housing Act 1980 and the Housing and Building Control Act 1984 were going through the House and again on the first Committee day of this Bill, when we voted what became Clause 1 into the Bill by 117 to 105.

I had hoped that the clear will of the House had at last been recognised by the Government as no effort was made to overturn that decision on either Report or Third Reading. But yesterday at literally the eleventh hour, when our amendments were discussed in another place, the Government used their large majority to introduce their own clause and delete ours.

No one here, I believe, likes going against the will of the elected House, but we have no alternative but to try. The Government's clause makes the present position worse. It is not a compromise, as I shall try to point out.

It seems that the Government object to the removal of the power that the Secretary of State has to make individual case-by-case decisions. Our amendment left the tenant with recourse to the court if he or she felt that the landlord—the local authority—had acted unfairly. The Minister in another place, Mr. Patten, yesterday said that that was a puzzling assertion and continued: because decisions taken by the Secretary of State under the present arrangements are in the same way subject to the final jurisdiction of the courts. Therefore, it would he a substitution of the first in line, the local authorities, for the courts, rather than the courts for the Secretary of State. There is no real difference in that respect between what happens now and what the Opposition prepare to propose".—[Official Report, Commons, 3/11/86; col. 691.]

I do not think that that was a fair picture of what happens or is intended to happen under the Government's new clause. With the exception of the elderly, most right-to-buy cases are determined initially by the landlord. That includes the disabled and sheltered and grouped housing for the mentally ill. The challenge is in the county court.

For the elderly, where the arrangements are unique, the Secretary of State has substituted himself as the arbiter and must therefore be challenged in the High Court. The High Court would not substitute its own judgment for that of the Secretary of State; it would look only at questions as to whether the rules of natural justice had been obeyed and whether the Secretary of State was exercising his functions under the Act. It would interefere only if no reasonable person could reach a particular decision.

Our amendment provides an objective test which can be challenged in the county court under Section 181 of the Housing Act 1985. There is no mention of the local authority having to be satisfied, in sharp contrast to the Government's subjective amendment where the decision "shall" be made by the Secretary of State.

Arrangement for the elderly, as I said, are unique. Why should those dwellings be treated differently from the rest? If the Secretary of State feels that a few local authorities are being unfair he has considerable powers under Sections 164 and 170 of the Housing Act 1985 to assist through legal aid or direct legal assistance any person who wishes to challenge the landlord over the right to buy. He even has the right to call in commissioners, but none of those powers has needed to be used since 1981. That fact should be remembered.

What I think helped to covince your Lordships to approve the new clause was not only the length of time that applications for exemption took to be decided but the weight of evidence which showed that cases for exemption which had been submitted to the Secretary of State were being turned down on trivial grounds and not according to the clear criteria and agreements made at the time of the 1984 Act. I quoted a case from Wolverhampton where working surfaces, shelves and so on were not of a special height and where there was no provision for special locks to enable the bathroom door to be opened from the outside. Those facts were cited as reason for refusal. Both come within the last four criteria supposed to be of less import according to the government circular.

The Harrogate survey conducted last year produced a mass of evidence that councils were losing precious houses and flats which they badly needed for the elderly on their waiting lists. One authority had had one case only supported out of 20 determined in favour of the tenant. Another had an application refused because it failed to comply with two minor points—the provision of raised electrical outlets and again suitable locks on bathroom and lavatory doors. That was despite the fact that the council had installed a speech-call system and had already decided to extend the mobile warden service to those dwellings. The ADC has reported a letter from Maldon District Council to the Secretary of State saying that different decisions had been made on applications for two identical bungalows originally built in 1949 specifically as old people's dwellings.

I have here a new questionnaire being used by the DoE West Midlands office dated September 1986. So it is very recent. There are 10 questions asking for replies in great detail. I shall quote just one. It is Number 4, where the dwelling is a first floor flat without a lift. It says: If this flat is situated at first floor level and is not served by a lift, please let me know (a) the number and height of steps of the entrance to the flat, (b) whether the stairs are fully enclosed, (c) whether there is a turn or bend in the stairs, so that some of the steps become narrow. If so, what is the width of the treads at that point, (d) whether the steps are designed to be non-slip. If so, please give details, (e) if a hand rail has been provided, and if it runs the full length of the stairs, (f) the lighting arrangements for the stairs at night, including the location of the light switches.".

I invite your Lordships to consider the amount of time that officials both in the district council office and in the department must spend in thinking up the queries and answering them

I have said that I consider that the Government clause makes matters rather worse. They have added to the criteria that we listed. The first—it appears as 5(a)—says, easy access on foot to the dwelling-house". That we had, but it goes on, including in the case of a flat above or below ground-floor level access by lift to the level of the dwelling-house".

Another, added under paragraph (e) states, reasonably convenient location in relation to shops and public transport".

In the case of the first, it seems unreasonable to expect basement and, even more, semi-basement levels in what are perhaps converted houses or any older building, to have a lift. A convenient location for shops or public transport has become much more difficult since the little corner shop has been increasingly squeezed out by the big supermarket. Sub-post offices have been closed and bus services have also deteriorated. This is particularly true in rural areas. We had in our clause: is particularly suitable for occupation by persons of pensionable age, having regard to its location". We also had is easily accessible on foot". I would have thought that those two points covered the situation adequately.

The other element introduced into the Government clause is the right of the Secretary of State to vary, by order, the features taken to be particularly suitable for elderly people's dwellings by adding or deleting features or amending the description of any listed feature. This order will be subject to negative procedure only. That it does not have to be brought before Parliament is not satisfactory. And the total freedom and power that the order gives the Secretary of State to change the goal posts at any moment we dislike very much.

We are therefore asking your Lordships to support our new clause. We have produced ample evidence that the present situation is working badly. We have shown the considerable delays in making decisions, and levels of detail being asked for that are well outside the spirit of the legislation and agreements reached in 1984 and clearly outside the guidance issued in Government circulars. Should the Government say it is unfair that the elderly are discriminated against if they cannot enjoy the right to buy their houses, I would say that the greater good of having an adequate supply of suitable rented accommodation for the increasing number of elderly in our population should prevail.

The number of elderly over 75 in the population is expected to rise from just over 2 million in 1981 to just over 4 million in 2001. Of the total of 314,000 elderly people's dwellings, 307,000 are in the public sector—15,000 with housing associations and 292,000 with local authorities. The number of elderly on housing waiting lists was 232,000 in 1985, according to the DoE aggregate of local authority estimates of elderly in need. There is an appalling shortage.

We must allow local authorities to keep a proper supply for renting. We trusted the Government's protestations made in 1980. But 90 per cent. of cases submitted to the Secretary of State had been rejected when the 1984 Bill was up for consideration; and we know what has happened since that Bill became an Act. I hope that we can take the proper action this afternoon and safeguard, at least in part, this very important section of our housing provision. I beg to move.

Moved, That this House do insist upon their Amendment No. 1 to which the Commons have disagreed and do disagree to the Commons Amendment No. 2 proposed in lieu thereof.—(Baroness David.)

Baroness Stedman

My Lords, I should like, from these Benches, to support the noble Baroness. We have had long discussions concerning the sale of accommodation that has been specially built or adapted for the elderly. We had them in 1980, again in 1984, and again during the passage of this Bill and similar legislation for Scotland. The situation today is more urgent than ever before, since the demand for such rented accommodation is growing much faster than ever before. With cutbacks in local authority expenditure, authorities are unable to increase very significantly their stock of this specialist kind of housing. We are also concerned that the arrangements for assessing whether or not to agree to the sale have not been working as we had hoped. Until recently the exclusion rate of cases submitted to the Secretary of State was only 16 per cent, although—surprise, surprise, I suppose—since this Bill started its tortuous passage, the exclusion rate has gone up to 36 per cent. There are still far too many being excluded.

It is still our view that the exclusion criteria are far too stringent. Examples were given at Third Reading, and again today by the noble Baroness, of the attitude of the Secretary of State and the minor issues he was making. Our original amendment from this House had the support of the local authority associations, of the Institute of Housing, of Shelter, of Age Concern and of many other bodies concerned with housing for the elderly. All of them believed that it was right to remove from the Secretary of State to the courts the final decision on elderly persons' exemptions under the right to buy. We have also incorporated criteria from Circular 21/84 to try to prevent the refusal of exemption on minor grounds.

The questionnaire that has been used by the DoE in its West Midlands regional office for a couple of months—the noble Baroness referred to this—details a number of minor grounds. I should like to know from the Minister whether the same questionnaire is being used by all councils in all the regions. Or is it only being used by the regional office in the West Midlands? One of the questions asked is, "Is the area surrounding the dwelling hilly?" Does that imply that, if one is old and one lives in a naturally hilly district, no homes for the elderly will be possible, or that they will be all available for resale if wanted?

I have considerable doubts about the Government including in the new criteria the reasonably convenient location in relation to shops and public transport. In many rural areas, housing for the elderly is located in villages that have not only lost but in some cases never had a village shop or a proper bus service. But the elderly still want the ability to remain in what they consider their area. This is not a suitable main criteria for exclusion from the right to buy. All that local authorities want to do, and all we wanted to do by the amendment, was to preserve the stocks of special housing for the elderly, so that when people need such housing it can be available to them.

We believe that the Minister has had a fair chance to show how he would interpret the rules in the light of discussions that we have had on previous occasions. He has had the opportunity to implement the elderly person exclusion arrangements within the spirit of what was agreed by this House and another place in 1980 and in 1984. It was accepted in 1984, as it is today, that the spirit of the legislation and the details set out in circulars have not been adhered to by the Secretary of State. That was the reason for the amendment during the course of the passage of the Bill. It is our view, as it was the view of the House on that occasion, that this part of the right to buy should now operate in the same way as in other aspects, such as sheltered and disabled housing. There have been two periods for the Secretary of State to operate the arrangements. I believe that he has failed to do so in a satisfactory manner and that this amendment, if the House reaffirms it today, will enable a sensible reform to be made in this very difficult area.

3.30 p.m.

Lord Boyd-Carpenter

My Lords, on these two amendments to the Bill your Lordships have to undertake what I think most of us regard as a difficult task; that is, the balancing of two considerations each of which is of a very considerable strength against the other.

The two noble Baronesses who have addressed your Lordships have, naturally from their point of view, put the whole emphasis on the very proper and understandable desire of local authorities to retain a sufficiency of accommodation which will be suitable for elderly persons. But the other side of the medal, and the other consideration, is that what is proposed in both these amendments, though in very different degree, is to deprive tenants of this accommodation of a right which virtually all other tenants have been given: to purchase the accommodation in which they live.

I hope your Lordships will feel that a good deal of weight ought to be given to the feelings of a person, very often an elderly person, from the nature of the accommodation, who wants—as millions of our fellow countrymen have shown recently that they want—to be an owner-occupier and finds himself or herself singled out for deprivation of that right because of the nature of the accommodation he or she occupies. I am sure that both the noble Baronesses can well understand the feeling of frustration of those tenants.

I think it is important, when balancing those two considerations, to hear in mind that if the Government's amendment is accepted there can certainly be no very dramatic or immediately very substantial change in the availability of accommodation for elderly people. Given, happily, the steady improvement in the expectation of life in this country, the occupants of those premises are likely to be there for a good many years to come. Therefore we are not concerned with any immediate or drastic cutting off of any substantial supply of accommodation to the local authorities but only to the fact that they would, if the decision went against them, find the supply gradually, slowly and over the years, diminished. Your Lordships may wish to have that fact in mind.

We then come to what seems to me to be the nub of the matter. If a citizen is to be deprived of the right as occupier to buy and to become an owner-occupier, subject to the subsequent decision of the court somebody has to take the first and immediate executive decision. The matter which arises on these two amendments is whether the somebody who will make that decision should be the local authority or the Secretary of State. The local authority are the landlord. It is the local authority therefore who have a special and specific interest in the case. I suggest to your Lordships that on general principles it is not a good thing to make somebody a judge in his own case but that it is better, where interests of this kind are involved, that the decision should be made by somebody, in this case the Secretary of State, who has no direct interest in the property concerned.

Acceptance of the original amendment as it went to the Commons seems to me—I say this with great deference—to have the weakness of making the local authorities in the first case judges in their own cause. In a matter where one has to balance two conflicting interests, both of great importance to the parties concerned, it seems to me that the solution contained in the amendment which went to another place—making the local authority the judge—is less good than that of making sure a decision is made by someone, in this case the Secretary of State, who is clear of the battle and has no direct interest and is therefore in a a better position to make a fair and proper decision. In the light of that, I shall vote for the Commons amendment.

Baroness Denington

My Lords, I should like to deal with only one point raised by the noble Lord: that of the rights of the tenant. I have always found the British people reasonable and understanding. I think that is true of us as a nation.

The bungalows about which we are talking were built by the local authorities. Many of the tenants who are in the bungalows—and my experience is of London—were living upstairs in the five-storey walk-up flats where they had been living for many years. As they get older, they find that mounting the 10 flights of stairs—two flights up to each floor—very difficult, especially if they have chest complaints; and in London unfortunately very often they do because of atmospheric pollution. When they are made an offer of a bungalow or an old person's ground-floor dwelling, it is seen as a blessing from heaven, particularly if it is a bungalow at the seaside, or in the countryside in clean air.

Those who have gone there are ordinary, decent people. They know that they have been lucky to be housed in a local authority dwelling, particularly in times when there are many people who are homeless and many who have had to live in rather unsatisfactory private accommodation. By and large they have been lucky. Now they are luckier still. Those people may think, "It would be nice to buy the property because our daughter. Joan, would be able to have it, with her children". However, when they realise, as they do—they read the papers and talk to people—the pressure that exists for this scarce accommodation, I am quite certain that these people will say, "But I have been lucky. I accept that I cannot buy it and when I go another person will be lucky in my place".

Lord Molson

My Lords, I find myself in some difficulty in understanding exactly what the position of the Government is with regard to this amendment. Before I come to the difference between the speeches of noble Lords and members of the Government and the wording of the amendment that we are asked to accept, perhaps I may say that I was interested to note the remarks of my honourable friend the Minister for Housing that he thought the amendments carried in this House, smack of discrimination of grounds of age. I never expected to have to accuse their Lordships, of all people, of agism, at least in part, if not in whole."—[Official Report, Commons, 3/11/86; col. 690.] I take it that that is a friendly reference to the relatively greater age of Members of your Lordships' House as against that of Members of the House in which he sits. Age of course does not necessarily reduce experience or wisdom, and I am sure that that is intended as a friendly reference to the regard that should be paid to the opinions that your Lordships express on all political and other matters.

The speech of the Minister of Housing I thought was of a very friendly kind. He gave various assurances in line with the assurances given by my noble friend the Parliamentary Under-Secretary of State, which I think should go quite a long way to reassuring your Lordships. At the same time, I cannot see how in the wording of his new clause effect is given to them.

First, let me say that I do not attach very great importance to this matter of appeal to the courts. The Government gave us an assurance that the amendment that was carried in your Lordships' House made no difference to the fact that a decision of the Secretary of State was ultimately subject to review by the courts. I find that a little puzzling because I see no actual reference to a right of appeal to the courts in the normal sense of the word; but if it were a matter of judicial review I do not think that any decision given by responsible Ministers would come within the scope that was indicated to your Lordships only a short time ago when my noble and learned friend the Lord Chancellor quoted a judgment of the late Lord Diplock. Speaking from memory, it was on the question of whether the courts would intervene if it were contrary to natural justice or completely perverse or ultra vires.

It is not apparent to me (I am not learned on these matters) and therefore in my ignorance I should be glad if the Parliamentary Under-Secretary would explain how it comes about that a decision given by the Secretary of State under the present law, and regardless of the two amendments now under consideration, would come before the courts. I cannot see how they could come within the definition of judicial review as laid down by the late Lord Diplock and reiterated by my noble and learned friend the Lord Chancellor.

I was impressed by the spirit in which the Minister in another place gave what I thought were very encouraging assurances. He said that all decisions taken by Ministers are given in good faith, and I am sure that they are. One does notice that the number of cases where an appeal has been allowed has gone up from 16 per cent. to 36 per cent. It may be that in the exercise of his jurisdiction the Secretary of State has paid some attention to the importance that your Lordships have repeatedly attached to the right of appeal and the importance of exempting suitable houses from the right of purchase.

I pass from that, having noticed with satisfaction that there has been such an increase in the number of appeals that have been allowed—all of them, of course, the earlier and later ones, in good faith.

The tone of the Minister to your Lordships' decision was extremely friendly. He said, as reported at col. 691 of Hansard: we are prepared to respond to responsible and constructive criticism on this point". Later he went on to say: we agree that some simplification of the test is necessary and we are prepared to see it. The Government amendment accepts the substance of the Lords amendment on this point". That is extremely satisfactory, and I ask the Parliamentary Under-Secretary of State to explain how that comes about.

The Secretary of State went on to say, at col. 702 of Hansard: The Secretary of State will be able to grant an exemption if the availability of the criteria is marginal or not wholly satisfactory if he is satisfied on the evidence as a whole, taking into account all the criteria. Applications will not fail automatically merely because dwellings are a long way from shops. In the application of the new crtieria, ministerial judgment will come into the matter". Anyone who compares, as I have done, the wording of the new clause that we are asked to accept with that of the clause that the noble Baroness, Lady David, moved, and your Lordships accepted, will find that the wording is similar and there is no reference there, so far as I can see, to a right of discretion with the Secretary of State under the clause as drafted by the Government as compared with the law as it is at present.

Where do we find the new flexibility that is intended to go a long way to fulfil the undertakings that have been given by my noble friend the Parliamentary Under-Secretary of State in this House and fully amplified by the Minister of Housing in another place? I ask those questions because it is not apparent in the short time that we have had to compare what is taking place in this House with what has occurred in another place. I therefore ask for enlightenment on this matter as it would certainly have a considerable influence on the way that I shall vote, if I vote at all.

3.45 p.m.

Lord Denning

My Lords, as a legal point has been raised, perhaps I may say that I hope that the amendment suggested by the Commons will be agreed to because it really is much more advantageous in an administrative way. As the Lords amendments left this House, it would open the door to controversies in the courts, many of them and at great expense, perhaps on legal aid. As now amended, with the decision of the Secretary of State being the governing matter, I cannot imagine any application successfully for judicial review.

Judicial review applies only when the Secretary of State has acted contrary to law or has been totally unreasonable in his decision. The courts and the House of Lords judiciary have said often, "We must as far as possible discourage applications for judicial review in order to try and go against a Secretary of State's decision as long as it is fair and honest and reasonable". It seems to me that the Commons amendment will do just what is right. It will enable a fair decision to be made by the Secretary of State and it will discourage any undue recourse to the courts. I hope that the Commons amendment will be accepted by your Lordships.

The Lord Bishop of Southwark

My Lords, I should like to ask the Minister one or two questions which relate particularly to the question of extending or narrowing the grounds on which exemption can be made, rather than dealing with the question on appeal. From time to time the impression is given that there are a large number of pensioners who are waiting to exercise this so-called right to buy, I feel that this cannot be so, since it is normally not possible for a pensioner to secure a mortgage. Therefore, we must be talking about a relatively small group of people who have acquired capital, presumably, since they became tenants eligible to hold property of this kind or they must have relatives in the background who are offering them financial help for the purpose of purchasing this property.

Clearly, some of that group, if they have come into capital suddenly—if they have won the pools, or whatever it may be—would then be in the position to purchase a house on the open market. So we come down to an even smaller group who cannot do that but could purchase a bungalow or a flat, or whatever it may be, because it is purchased at a very heavily subsidised price.

As I listen to this and earlier debates, I find myself trying to weigh up the arguments as between the need to give that very small group of people the right to buy and take out of the market yet more properties specially intended for the elderly, as against the very large group of people who are already pensioners, and the even larger group of people who are going to become pensioners, who are going to need such property. We have heard already this afternoon that there is a serious shortage of such property available all over the country, but perhaps specially in some of the rural areas where there is almost no chance of a local authority being able to replace such housing. The amount they will receive for the sale of the existing property will go nowhere towards providing a replacement.

I find it very difficult, considering these points, to see how many people we are talking about. Perhaps the Minister could give us some indication of the actual number of people we are talking about in trying to decide this issue. I find it difficult to extend the right beyond the proposed amendment unless there is a very good case for doing so.

Lord Harmar-Nicholls

My Lords, I do not think that we ought to look at this amendment as though we are at the beginning of the Bill. We are at the end of a very long Bill and I think we ought to take into account the parliamentary interchange between the two Houses. I think on this occasion it is very important that we do that. The noble Lord, Lord Boyd-Carpenter, has correctly pointed out the marginal nature of the difference. The general principle, the general view, that this House included in the Bill in its earlier stages has been generally accepted by the Government. That ought to be taken into account when we come to any final decision on this amendment at the end of the day.

As we have all said so many times in the past, our function is to revise and to give a chance for second thoughts. We have given a chance for second thoughts to the other place. At the end of the day, it is the other place who will have to be responsible as to whether what they do is right or wrong, fair or unfair, to the people of this country. They will have to face that in a way that does not come to this House. I believe that what we ought to satisfy ourselves upon mainly is whether or not the other place have given due, proper and sympathetic consideration to the views which we expressed when we altered their Bill. Considering the way that the other place have accepted so many of our amendments, and have accepted the spirit behind this particular item, I do not think anyone can deny that they have given careful and sympathetic thought to the decision that we thought was right at the time.

If a great gulf remained on the general principle behind this issue, then I think that we would be justified in making speeches such as the right reverend Prelate and some other speakers have made. I do not believe that the difference in principle, which is the real point that ought to concern us, is wide enough for us to give the impression that we are being stubborn despite the fact that we have been met so much on other occasions. I know that we are not intending to be stubborn. I know that the noble Baroness does not intend to give that impression. However, I believe that the difference between the two issues is so slight, that in view of the way so many of our other amendments have been accepted in the other place, if we go to the point of pushing this amendment again. I think we shall be losing part of the great reputation that we have earned over this Session, and we shall be giving the impression of being stubborn.

The noble and learned Lord, Lord Denning, who guides us so very effectively on many matters, has removed the one point which would have bothered me. He has made quite clear that in terms of the legal situation, the final court of appeal, that the issue no longer stands up. I bear in mind our role of asking for second thoughts, and that we have satisfied ourselves by the very nature of the amendment itself that the other place have given second thoughts and have given a sympathetic response by the words that they have put in their amendment. In all those circumstances, I feel that we should not produce the arguments again as though we were at the beginning of the Bill, where these differences had not been brought out.

Lord Henderson of Brompton

My Lords, perhaps I may say a few words, following the noble Lord, Lord Harmar-Nicholls. He gave the impression that this was the end of the road. Well, it is not. There is a perfectly legitimate piece of parliamentary machinery for this House to insist on their amendment which the Commons have disagreed to, and then for the Commons to consider that insistence and change its mind or not as the case may be. All that this House is doing by listening to, and perhaps voting on the amendment of the noble Baroness is to exercise the perfectly legitimate constitutional machinery between the two Houses. I think that really disposes of the main argument of the noble Lord, Lord Harmar-Nicholls, if I may say so.

As always, I was very grateful to the noble Lord, Lord Boyd-Carpenter for simplifying the issue. So far as I can recollect—although the noble Lord said it far more eloquently than I can—he said that this was a balance of advantage between, on the one hand, the council having a sufficient stock of houses specially built, or specially adapted, for the elderly to be able to fulfil their duties (some of them statutory), to house the aged just as they have a duty to house the disabled, and the right of the elderly to be able to enfranchise their lease as—I think he said—virtually everybody else has. The word "virtually" was wisely inserted into the remarks of the noble Lord, because those who are excluded from the right to buy should be those categories of persons for whom the local authorities are bound to make provision; namely, disabled persons or the elderly. I have always thought that the noble Lord, Lord Boyd-Carpenter—and I have admired him for this—is the great champion of the ratepayer. I cannot think of a greater waste of ratepayers' money than for these specially built or specially adapted houses for the aged to be subject to enfranchisement so that those houses are lost for the further aged to whom councils have to supply houses when the existing tenants die.

It is very extravagant because the council either has to buy back that house from the elderly person's heirs and successors (who will have benefited far more than the elderly person by the enfranchisement) at no doubt a considerably greater cost, or they will have to build anew. To build new houses is very expensive. Therefore, to use the words of the noble Lord, Lord Boyd-Carpenter, the ratepayer is ill-served if the provisions which this House seeks to reinsert in the Bill are not so reinserted.

As regards the other matter, which is important, as to whether the appeal should go to the Secretary of State or to a court, again I should have thought that the instinctively Conservative person was against centralised jurisidiction of that sort. The "gentleman in Whitehall knows best" is something which does not ordinarily appeal to the ordinary Conservative. In this particular case, I should have thought that most people, including Conservatives, would be happier for the decision to be taken by the court instead of by the Secretary of State.

4 p.m.

Lord Seebohm

My Lords, I shall not keep your Lordships long, but I was a very strong supporter of your Lordships' amendment when it was passed at an earlier stage. I have not had a great deal of time—and nor has anyone else—to consider the Lords amendment. However, today I have once more been able to get in touch with Age Concern, of which I am president. I had a talk with the director, and I return to what I said before, that this Lords amendment is the right one.

I listened very carefully to the noble Lord, Lord Boyd-Carpenter, who, as usual, gave a very clear and good exposition from his point of view. He spoke about the balance, and I agree that there is a balance here. However, in his description of the balance, he put very little emphasis on the feelings and the rights of the landlord. Sufficient weight was not given to that.

We know that there is an enormous shortage of rented accommodation for old people, and I believe that unless there are very good reasons anything which diminishes that must be thwarted. In this particular instance we are not really selling the property to the old person; we are selling it to their dependants. I have no doubt whatever that those old people have every intention of staying in that rented accommodation until they die. I believe that this is simply a question of benefiting others than the old people concerned and the tenant. Therefore, I am afraid that I still beg your Lordships to approve the Lords amendment which we passed previously.

Lord Skelmersdale

My Lords, the House will remember that at the very beginning of the Committee stage, your Lordships and I, speaking for the Government, even before the matter came to a Division, agreed that the test of whether houses and flats really were suitable for the elderly and so exempt from the right to buy had not worked well in practice. Although I said that the Government were themselves working towards a simpler and more objective statutory test, the noble Baroness, Lady David, assisted by the noble Baroness, Lady Stedman, and the noble Lord, Lord Hylton, put down an amendment on the Marshalled List which in many respects reflected the Government's own view very closely indeed. I shall get to that in a minute.

The House contended that it was necessary not only to put that test into legislation, but that it should go into primary legislation. As my noble friend Lord Molson has recognised this afternoon, the Government accept that contention, and that is why it will come as no surprise to the House that sub-paragraph (5)(a) to (d) is virtually the same as in the amendment passed in your Lordships' House in Committee. This goes a very long way indeed to giving the House what it wants. Indeed, the Government have gone further. As I said at the time, there is one feature which in our view needs to be taken into account in considering whether a dwelling is suitable for the elderly. That is to be found in sub-paragraph (5)(e) of this new clause; namely, that it should be in a reasonably convenient location to shops and public transport. We shall want to consider this point in more detail when we discuss the amendments tabled by the noble Countess, Lady Mar.

Therefore, we have an objective test which will I hope be seen to be fair on all sides. However, until it is up and working no one—neither the noble Baroness, Lady David, nor I, nor the right reverend Prelate the Bishop of Southwark, nor anyone else in your Lordships' House—will know whether it is satisfactory in every particular.

That is why the Government have added power to vary this test by order—to give that very flexibility which I promised and to which my noble friend Lord Molson referred. Again, this is a point which no doubt we shall be discussing later. However, I can give the House a firm undertaking that we would not use that power without first consulting the local authority associations.

There is one aspect of the amendment from another place that differs markedly from that passed by your Lordships. It is this: who should operate the test? Today's amendment follows existing legislation by keeping the operation in the hands of the Secretary of State on the application of the landlord. The House will want to know why, and I suggest that the answer is quite simple. Under the Bill, as it stands, it would be the landlord who would operate the test. It has been put forcefully to us that in fact the test would not be operated consistently in different local authority areas.

The Opposition's Front Bench housing spokesman himself recognised this point in another place yesterday. At col. 704 of the Official Report he said: I also accept what the Minister said, in a round about way, about some local authorities being unreasonable. I do not deny that. Some local authorities, given wide discretion, would be wholly unreasonable. There is no doubt in my mind about that". I am sure the House will agree with me that one thing we cannot afford to happen is that the right to buy for the same sort of dwelling should be accepted in one area and denied in another. That could, I am advised, happen if decisions were left in the hands of landlords.

The general policy of the party of the noble Baroness, Lady Stedman, on the right to buy appears to be one of allowing local discretion not only in respect of the elderly but generally. Her honourable friend the Member for Bermondsey, said yesterday: I think that the present example of how unsatisfactory that policy would be"—

Lord Hughes

My Lords, I thought that it was out of order to quote what was said in another place, except in the case of a Minister.

Lord Skelmersdale

My Lords, I apologise to the House. The noble Lord, Lord Hughes, is absolutely right and I shall refrain from so doing. It is true that the Opposition spokesman—and this is not a quotation—went on to say that if tenants felt that they were being unreasonably denied the right to buy by their landlords, they could have recourse to the courts. However, as my honourable friend made clear yesterday, that is not a convincing point. Tenants and landlords already have recourse to the courts against unreasonable decisions by the Secretary of State. It is quite misleading to suggest that from this point of view the rights of tenants would be strengthened by putting decisions in the hands of the local authorities.

The noble Baroness, Lady David, asked at the beginning of this short debate about the Secretary of State's jurisdiction. In effect, the noble Baroness was asking why decisions on the exemption of non-sheltered housing should rest with the Secretary of State when local authorities are left to take their own decisions about the exemption of sheltered housing. It is possible to provide a much more clear cut definition of sheltered housing. We did that in the 1984 Act, and my impression is that there have been few difficulties since. Where there is a clear definition, landlords and tenants know where they stand. Non-sheltered housing presents much greater difficulties. There is not the same basis for a simple objective distinction between types of housing which would give one confidence that authorities would apply the test consistently, or in some cases fairly.

There have been suggestions that there have been cases in which the Secretary of State has refused to exempt property from the right-to-buy even though all the relevant criteria were met. That is an astonishing suggestion and it is simply not true. No specific case has ever been produced by our critics which could substantiate that claim. If a local authority considers that a decision of the Secretary of State under paragraph 11 is wholly unreasonable it can of course challenge the decision in the courts. This is not a procedure to which local authorities are strangers. There are currently three local government cases where local authorities have applied for judicial review of the Secretary of State's decision, and there have been several others in recent years.

Let me make one further point about the criticisms of the Secretary of State's administration of the present test. His decisions are of course subject to judicial review in the courts, a subject about which we have heard quite a lot this afternoon. Local authorities have access to the best legal advice in the land, and they are not in my experience slow to challenge my right honourable friend if they consider his decisions unreasonable. Your Lordships might, therefore, be interested to know that, so far, there has been only one serious attempt to challenge a decision taken by the Secretary of State to refuse to exempt a dwelling from the right to buy, and in that one case leave to apply for judicial review was refused by the High Court. When it comes to the crunch, it seems that local authorities are not prepared to stand up and substantiate these vague charges of unreasonableness.

It has also been suggested that we give no reasons for our decisions. It is true that the decision letter issued by my department does not as a matter of course give reasons for the decision. But wherever either party subsequently asks for a statement of reasons, one is given in full.

Where there is a question of judicial review, either of a decision of the Secretary of State or of a local authority, this has to be done through the High Court. The opposition amendment that we are discussing now does not produce a wholly objective test. It would be for a local authority to say what, for example, was easy access or suitable heating arrangements, or whatever.

There is no statutory right of appeal from the Secretary of State's decision. An application for judicial review would have to be on the basis that the decision was one that no reasonable Secretary of State could have taken, or that there was a breach of natural justice. But the fact is that on matters of this sort some element of judgment is inevitably involved. There is no hard and fast way of drawing the line. It is therefore important that these decisions should be taken by the Secretary of State and not the landlord.

In fact the proportion of successful local authority applications has been over 27 per cent. for the past 18 months, and over 30 per cent. since October 1985, so I question slightly Lady Stedman's figures on this matter. I have examples proving this, but I do not think it would be in the interests of the House if I read out a whole lot of statistics.

So far as Lady David's point about application to the county court is concerned, there is already a power in Section 181 of the Housing Act 1985 for right-to-buy questions—

4.15 p.m.

Baroness David

My Lords, if the noble Lord will forgive me, I quoted that when I spoke.

Lord Skelmersdale

In that case, my Lords, there is something this afternoon that we can agree on. There is already a power in Section 181 of the Housing Act 1985 for right-to-buy questions to be decided in the county court. This is not the same as judicial review, but it might give a tenant another route to the courts under the opposition amendment. This does not alter the basic point that decisions of the Secretary of State are reviewable, and tenants do not find it easy to go even as far as the county court, a point that your Lordships might well take on board.

Somewhat to my surprise, there has not been a lot of comment, other than a particular construction put upon it, on the remarks of my honourable friend the Minister for Housing and Construction in another place on ageism. There have been several excitable reports in the press this morning, but since the subject has not been raised I do not think it would be appropriate to go into it.

On the other hand, something I should do is answer a question asked by the right reverend Prelate the Bishop of Southwark, and that is the reasonable question: how many tenants of those houses are we talking about? My best estimate, which I cannot at this short notice substantiate, is that we could be denying the right to buy for half a million elderly tenants. I agree with my noble friend Lord Boyd-Carpenter, that that is the issue at stake. It would indeed be age discrimination if all elderly people were automatically excluded from the right to buy.

I accept that it is not the intention underlying the Opposition's amendment, but I am suggesting, as was my honourable friend last night, that that could be the result. We have to remember that the desire for home ownership among elderly people is often as strong, and certainly as legitimate, as it is among other, younger people, a point that my noble friend Lord Boyd-Carpenter made so strongly earlier. We have, in his words, to strike a balance.

Both the noble Baroness, Lady David, and the noble Baroness, Lady Stedman, quoted a questionnaire used by our West Midlands office, and I can confirm that this is a standard questionnaire. It is difficult to see how we can make a distinction between suitable and unsuitable dwelling without asking questions about a dwelling's physical features. We agree, and I made no secret of it at the beginning of this speech, that the present test is too detailed and requires too many questions to be asked. That is exactly why we are proposing virtually the same simplification of the test of suitability as that proposed by the noble Baroness opposite.

As my noble friend Lord Harmar-Nicholls almost said, if I may put it that way, it is extremely unfortunate in many ways that this amendment, which gives the House so much of what it clearly wants, is the first of three amendments which concerned your Lordships when we last looked at the Bill. On this one the Government have a gone a very long way to meet the wishes of the House. The second concerned the effects of the Pulhoffer judgment and the Government have conceded the point, so there is no need for an amendment on the Marshalled List today. Lastly, we have drafted an amendment to fulfil a commitment that my noble friend Lady Hooper made to the noble Lord, Lord Ezra, on Third Reading, that we would protect those few tenants who on the day of the Hickman case had got well along the road to enfranchising their houses and would have been caught by my noble friend Lord Coleraine's amendment.

That cannot lead any one in the land to the conclusion that these are the actions of a dictatorial government, still less a dictatorial Minister. The issue at the centre of this short debate on the noble Baroness's amendment is of course the question of who should operate the test for exemption. The Government case is a simple one. We seek—and I know the whole House seeks—an objective test which is seen as being fair to both tenants and landlords. Both the Opposition and the Government amendments give this. This can never be so when, as my noble friend Lord Boyd-Carpenter so clearly stated, the local authority, being the landlord, is made judge and jury in its own court.

Lord Boyd-Carpenter

My Lords, would my noble friend also deal at this point, where it is very relevant, with the observation of the noble Lord, Lord Henderson of Brompton, that the granting of permission to sell by a local authority would involve that local authority in considerable expenditure?

Lord Skelmersdale

My Lords, also of course the right to buy releases considerable assets for the local authority, so I would suggest to the noble Lord, Lord Henderson—and I am grateful to my noble friend Lord Boyd-Carpenter for reminding me of the point that the noble Lord on the Cross-Benches made—that there is, even in this case, a balance to be struck.

My noble friend Lord Boyd-Carpenter clearly stated that the local authority, being the landlord, is made judge and jury in its own cause. It is on these grounds and on these grounds alone that, should this matter come to a vote—I sincerely hope, but doubtless in vain, that it will not—I ask my noble friends in all parts of the House to agree with the Commons in their amendment and to join me in the Not-Contents Lobby.

Baroness David

My Lords, I should first like to thank all those who have spoken in my support. They were very effective speeches—more effective than I could make myself. From those who are opposed to my point of view there has come a distrust of local authorities which I am very sorry to hear. It seemed to me very odd that the noble Lord, Lord Boyd-Carpenter, spoke of the local authority being judge and jury in its own case when it came to the right to buy of the elderly, if our amendment is carried; because the landlord, the local authority, already makes the decision in all general cases, such as in sheltered housing, disabled housing, and grouped housing for the mentally ill. For all those, the challenge is in the court. We are asking for the elderly to be treated in the same way.

I should like to take up the figure mentioned by the Minister of half a million people being able to vote. That figure must have surprised the right reverend Prelates as much as it did me, because according to my figure (which is a DoE figure) there are only 307,000 public sector houses for the elderly in the country; so that seems a most extraordinary figure.

The Minister said that they had gone a long way towards having the same criteria as we had in our amendment. But he did not say that they added the fact I mentioned before about the flat in a basement or semi-basement and a reasonably convenient location in relation to shops and public transport, which is very difficult in rural areas, as has been pointed out. He also did not say that there is another subsection added by which the Secretary of State may by order vary the list of features. He can do that by order, and we do not have very much say in what happens when it comes to an order particularly if there is only the negative procedure to go on.

It comes down to whether it is the local authority or the Secretary of State who has the final decision. I can pray in aid the noble and learned Lord, Lord Denning, because he said what I said when I was speaking about the courts. It would have to be the High Court, and the High Court cannot change the judgment. It can only say whether the Secretary of State had conducted himself properly, so at the end of the day the decision of the Secretary of State is unchallengeable. I hope that the House will support me in supporting local authorities and their efforts to provide housing for the increasing number of elderly in this country.

4.23 p.m.

On Question, Whether the House do insist on their Amendment No. 1 to which the Commons have disagreed and do disagree to the Commons Amendment No. 2 proposed in lieu thereof?

Their Lordships divided: Contents, 148; Not-Contents, 124.

Ailesbury, M. Ingleby, V.
Airedale, L. Irving of Dartford, L.
Amherst, E. Jacques, L.
Ampthill, L. Jeger, B.
Annan, L. Jenkins of Putney, L.
Ardwick, L. John-Mackie, L.
Attlee, E. Kagan, L.
Avebury, L. Kilbracken, L.
Aylestone, L. Kilmarnock, L.
Banks, L. Kinloss, Ly.
Beaumont of Whitley, L. Kissin, L.
Bernstein, L. Leatherland, L.
Beswick, L. Listowel, E.
Birk, B. Llewelyn-Davies of Hastoe, B.
Blease, L. Lloyd of Hampstead, L.
Blyton, L. Lloyd of Kilgerran, L.
Bonham-Carter, L. Lockwood, B.
Boston of Faversham, L. Longford, E.
Bottomley, L. Lovell-Davis, L.
Briginshaw, L. McGregor of Durris, L.
Broadbridge, L. Mackie of Benshie, L.
Brockway, L. McNair, L.
Brooks of Tremorfa, L. Mar, C.
Bruce of Donington, L. Milford, L.
Burton of Coventry, B. Mishcon, L.
Carlisle, Bp. Monson, L.
Carmichael of Kelvingrove, L. Morris of Kenwood, L.
Cledwyn of Penrhos, L. Mountevans, L.
Collison, L. Moyne, L.
Craigavon, V. Mulley, L.
David, B. Murray of Epping Forest, L.
Davies, L. Northfield, L.
Davies of Penrhys, L. O'Brien of Lothbury, L.
De La Warr, E. Ogmore, L.
Dean of Beswick, L. Oram, L.
Denington, B. Paget of Northampton, L.
Derby, Bp. Phillips, B.
Devonshire, D. Pitt of Hampstead, L.
Diamond, L. Ponsonby of Shulbrede, L. [Teller.]
Donaldson of Kingsbridge, L.
Elwyn-Jones, L. Prys-Davies, L.
Ely, Bp. Rathcreedan, L.
Ennals, L. Rea, L.
Ewart-Biggs, B. Reilly, L.
Ezra, L. Rhodes, L.
Falkender, B. Robson of Kiddington. B.
Falkland, V. Rochester, Bp.
Fisher of Rednal, B. Ross of Marnock, L.
Fitt, L. Sainsbury, L.
Foot, L. Saint Brides, L.
Gallacher, L. Scanlon, L.
Galpern, L. Seear, B.
Gladwyn, L. Seebohm, L.
Glenamara, L. Sefton of Garston, L.
Grey, E. Serota, B.
Grimond, L. Shackleton, L.
Hampton, L. Shannon, E.
Hanworth, V. Shepherd, L.
Harris of Greenwich, L. Silkin of Dulwich, L.
Hayter, L. Soper, L.
Henderson of Brompton, L. Southwark, Bp.
Henniker, L. Stallard, L.
Hughes, L. Stedman, B. [Teller.]
Hunter of Newington, L. Stewart of Fulham, L.
Hutchinson of Lullington, L. Stoddart of Swindon, L.
Hylton, L. Strabolgi, L.
Hylton-Foster, B. Strauss, L.
Taylor of Blackburn, L. Wigoder, L.
Taylor of Gryfe, L. Willis, L.
Taylor of Mansfield, L. Wilson of Langside, L.
Tordoff, L. Wilson of Rievaulx, L.
Underhill, L. Winchilsea and Nottingham, E.
Vernon, L.
Wallace of Coslany, L. Winstanley, L.
Wells-Pestell, L. Wise, L.
Abercorn, D. Kimball, L.
Aldington, L. Kimberley, E.
Allen of Abbeydale, L. Lane-Fox, B.
Allerton, L. Lauderdale, E.
Atholl, D. Layton, L.
Auckland, L. Lindsey and Abingdon, E.
Barber, L. Long, V.
Beaverbrook, L. Lucas of Chilworth, L.
Belhaven and Stenton, L. Luke, L.
Beloff, L. Lurgan, L.
Belstead, L. McAlpine of Moffat, L.
Blyth, L. McFadzean, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brabazon of Tara, L. Mancroft, L.
Bridgeman, V. Margadale, L.
Brightman, L. Marley, L.
Brookes, L. Massereene and Ferrard, V.
Brougham and Vaux, L. Maude of Stratford-upon-Avon, L.
Byron, L.
Cameron of Lochbroom, L. Merrivale, L.
Campbell of Alloway, L. Mersey, V.
Campbell of Croy, L. Milverton, L.
Carnegy of Lour, B. Montgomery of Alamein, V.
Carnock, L. Mowbray and Stourton, L.
Chelmer, L. Murton of Lindisfarne, L.
Clitheroe, L. Newall, L.
Coleraine, L. Nugent of Guildford, L.
Constantine of Stanmore, L. Orkney, E.
Cottesloe, L. Orr-Ewing, L.
Cox, B. Pender, L.
Croft, L. Peyton of Yeovil, L.
Davidson, V. [Teller.] Portland, D.
De Freyne, L. Rankeillour, L.
Denham, L. [Teller.] Rawlinson of Ewell, L.
Denning, L. Reay, L.
Derwent, L. Renton, L.
Duncan-Sandys, L. Rochdale, V.
Eccles, V. Rodney, L.
Eden of Winton, L. St. Aldwyn, E.
Ellenborough, L. St. Davids, V.
Elles, B. Sandford, L.
Elliot of Harwood, B. Sandys, L.
Ferrers, E. Sharples, B.
Fortescue, E. Skelmersdale, L.
Fraser of Kilmorack, L. Slim, V.
Gainford, L. Strathcarron, L.
Gardner of Parkes, B. Strathspey, L.
Geddes, L. Sudeley, L.
Gisborough, L. Swinfen, L.
Glenarthur, L. Swinton, E.
Gray, L. Terrington, L.
Gray of Contin, L. Teynham, L.
Gridley, L. Thorneycroft, L.
Hailsham of Saint Marylebone, L. Thurlow, L.
Torrington, V.
Halsbury, E. Tranmire, L.
Hampden, V. Trefgarne, L.
Harmar-Nicholls, L. Trenchard, V.
Hesketh, L. Vaux of Harrowden, L.
Hives, L. Vivian, L.
Home of the Hirsel, L. Ward of Witley, V.
Hooper, B. Whitelaw, V.
Kaberry of Adel, L. Young, B.

Resolved in the affirmative, and Motion agreed to accordingly.

[Amendments Nos. 2B to 2G not moved.]