Housing Bill

HL Deb 08 July 1996 vol 574 cc12-76

3.10 p.m.

Report received.

Clause 151 [Allocation of housing accommodation]:

Baroness Hollis of Heigham moved Amendment No. 1: Page 97, line 4, at beginning insert— ("Subject to section (Allocations to homeless persons),").

The noble Baroness said: My Lords, the main push of today's debate is on Parts VI and VII of the Housing Bill, whose purpose is to ensure that families are housed in permanent council housing only from the waiting list. Homeless families, in other words, may not queue jump but, like everyone else, must wait their turn on the list. While they wait, the local authority has a duty, lasting two years, to find them temporary housing either in private rented stock or in the local authority's own temporary stock such as hard-to-let housing. The Government hope that by the end of those two years the vast majority of homeless families will have gained enough points to reach the head of the queue and be rehoused. The Government have accepted that if they have not reached the head of the queue local authorities can continue to help them if they wish, but not, so far, in their own temporary housing.

The problem is that many local authorities no longer have enough council housing left in which to house most people off the waiting list within two years, let alone house homeless families. It will probably be possible in the north of England, but in London and the South, and in rural districts, there is a limited supply of social housing to rent. For those families that are hard to house because they have special needs—they may be a large family or have a disabled member—the wait is likely to be much longer than the two years.

What, then, would a homeless family in temporary accommodation for two years do in the meanwhile? If a family is on the waiting list but not homeless, that family can continue to wait. They may be in insecure housing sharing with family or friends, husband, wife and child all in an eight-foot bedroom; they may be in a shabby but expensive rented flat where housing benefit does not cover the rent; they may live in a house that is in a state of poor repair; given their physical health, they may be ill-suited to the house they are in (for instance they cannot climb stairs and the only bathroom is upstairs); they may have only two bedrooms and be somewhat overcrowded with the mother and daughters in one bedroom and the father and sons in another. But however inadequate, unsatisfactory and undesirable all those housing circumstances are, at least the family have a roof over their heads. Such families make up the majority of those on the waiting list. They can usually hold on with their fingernails—just—until the points system or the waiting list itself takes them to the head of the list and they are rehoused into adequate, decent and affordable permanent housing.

But if people are homeless they cannot wait. They cannot hold out. Family relations may have broken down; the landlord may have evicted them because housing benefit does not cover the rent and they cannot make up the shortfall; the house may be so damp that the children are in and out of hospital with asthma; or the strain of overcrowding may have led to domestic violence and the family has broken up. Homeless families are not different from those on the waiting list, except in so far as their need was more severe in the first place and their ability to hold on and wait is that much less.

As the Department of the Environment so rightly said not very long ago, in 1989: in many local authorities, those who are homeless are simply people on the waiting list with nowhere to wait". They are people on the waiting list with nowhere to wait. That is not my phrase but that of the Department of the Environment; it is the Government's phrase.

This amendment respects that view of the Department of the Environment and also respects the assumption that has informed this Government Bill that, within two years, the vast majority of homeless families who have been put on the waiting list will indeed be housed. The amendment says that when a local authority receives an application from a homeless family it must consider whether, as with other candidates on the waiting list, that family may be expected to be rehoused within the two years of the local authority's temporary duty towards them and, if the needs of that family are so acute relative to those of other applicants, whether it is reasonable to give them additional points, additional priority, to ensure that they are housed within two years.

In other words, if what the Government believe is right, as I hope it is, this amendment should not be necessary. But for the tiny minority of homeless families on the waiting list, either in areas where there is a limited or very short supply of social rented housing, as in the inner cities, in the South and in rural districts, or for those families who have difficulty in finding housing because they have special needs—for instance, large families, families with a disabled member—this amendment is their safeguard. Local authorities would not be required to give homeless families additional preference. However, this amendment would mean that, when examining a family's needs relative to those of other people, an authority must consider whether it should ensure that they are housed within the two years or by some other specified time.

If the Government are right, and the majority of homeless families will be housed within two years, the amendment need apply only to a very small minority of families: those who live where social housing is in very short supply or where they have special and particular needs. But it does ensure that the needs of those families are not lost sight of and that the local authority may have the discretion to ensure that they are housed within two years. I beg to move.

3.15 p.m.

Baroness Hamwee

My Lords, I have put my name to this amendment and to Amendment No. 74. My noble friend Lord Russell has just handed me a newspaper cutting. Although noble Lords are accustomed to saying that one cannot believe all one reads in the newspapers, this short report perhaps says more than I could about the situation to which the noble Baroness referred. It is a report from December 1995 concerning an order against the London Borough of Lambeth, which was told, to pay £6,000 compensation to a homeless family with seven children who were moved 34 times before the council finally found them a permanent home after a wait of more than five years. Between June 1989 and September 1994, the family lived in bed-and-breakfast accommodation at 34 hotels in eight London boroughs … Save for short periods, the children received no formal education during that period". The local government ombudsman, referring to the loss of education, said that he viewed the position of the children as they moved around London "very seriously". The ombudsman said, It cannot be any surprise that problems arose when so many children were crammed into bed-and-breakfast accommodation". The borough was ordered to set aside several thousand pounds to pay for remedial education for those children.

As I said, one sometimes takes with a pinch of salt what one reads in the newspapers. I hope that a situation such as this is worth reporting for its scarcity value. However, this is an extreme example of the very difficult situation to which the noble Baroness referred. It is the reason I join the noble Baroness in asking your Lordships to question very seriously the change in the method of dealing with permanent accommodation proposed by the Government in the Bill.

Baroness Gardner of Parkes

My Lords, I oppose these amendments on the ground that I do not believe they are necessary; also, Amendment No. 74 would place very heavy demands on local authorities. The noble Baroness, Lady Hamwee, quoted a newspaper report from 1995. I hope the case it referred to is very rare. I hope that the case I read in the local paper, the Hampstead & Highgate Express, on 21st June is equally rare. It related to a couple who claimed that they and their six children were homeless and applied to Camden Council. The report is quite lengthy and I shall not read it all. It states: At a second meeting with the council … they brought with them a man who said he was Mr Hai's cousin. He … pleaded with the council to find the Hais a home quickly, because he said both he and their family were terribly crowded". In August they were offered temporary accommodation, which they refused, saying they would wait for a house of their own. They wanted one of the very few four-bedroomed homes that Camden Council has, and they said how hard the situation was with their six children.

Alarm bells began ringing when the council contacted the schools that the children were supposedly attending, and there was no record of the children. The council then started to look much more carefully into the case, and it uncovered the fact that this couple had just bought two houses for themselves and were about to buy a third; Mr. Hai was a director of a company registered at Companies House; and only four children were traced. Four children had been born to the couple, but were not necessarily with them.

Apparently the maximum fine was £2,500 for this attempt to defraud the council. When the case went to court the defence's case was that they had been abroad for many years—they had lived in Saudi Arabia for 17 years—and were not familiar with the procedures for claiming council housing, which is the sort of plea I have heard here often. The judge dismissed the defence's case and said that it was not ignorance, but fraud and a pack of lies.

I hope that case is equally as rare as the one that the noble Baroness, Lady Hamwee, has just quoted. So many homeless families are genuine cases, and if they are genuine I believe that they will accumulate the necessary number of points within the appropriate time. I believe two years is a good long time. It has been conceded here that during that time most of these people will have been rehoused. The fact that the family quoted by the noble Baroness, Lady Hamwee, had seven children meant that it was a particularly difficult case. I do not know anything about Lambeth Council's housing stock, but any family with such a large number of children does present a difficult case.

I cannot accept the point made by the noble Baroness, Lady Hollis, that these people have nowhere to wait, because they are offered temporary accommodation, and they do have somewhere to live. No one is left without a roof over their heads. I think these amendments are too onerous on the local authorities, and I would oppose them.

Baroness Oppenheim-Barnes

My Lords, I would like to agree with every word that my noble friend Lady Gardner of Parkes has said. As the noble Baroness, Lady Hollis, will know from our little debate at Committee stage, I feel equally strongly on this matter.

There is one point which I would like to pick up, and on which I suspect the noble Baroness is between a rock and a hard place, or so it appears to me. One does not want to appear heartless as far as "homeless" people are concerned, but the noble Baroness went through a list of categories of people who were waiting for housing, who were waiting in hopelessly inadequate housing, often in misery, often in intolerable circumstances, but who had been on the waiting list longer than those "homeless" people may have been. But, as my noble friend said, such people had had housing over that two-year period; they had had a period of respite; and they had had a period of trying to get things together.

I sympathise with the noble Baroness on that point, and I suspect that her real difficulty is that she really wants to say that there is not enough social housing, and she wants to be able to house everybody in this social housing, but she cannot say that because she would be committing her party to a good deal of expenditure that it would not wish to own up to in this place.

Therefore, I would urge my noble friends to resist both these amendments, the second one not least of all because I think it is possibly incapable of interpretation.

Lord Monkswell

My Lords, perhaps I may intervene purely to suggest that I suspect the noble Baroness, Lady Gardner of Parkes, has misinterpreted the Government's plans. I think we need to recognise that we are not talking about a situation now, but a situation that will pertain in approximately two years' time, when this Housing Bill has become an Act and is on the statute book. I believe I heard her correctly when she said that after two years nobody would be thrown on to the streets. Maybe I misheard her. The noble Baroness indicates, from a sedentary position, that that is not what she meant.

It is worth the House recognising that we are, as I understand the Bill in front of us, talking about a situation where a local authority will have a responsibility to ensure that homeless people are housed for a period of two years, but when that two-year period is finished then the local authority will, almost by law, be required to evict that family from any local authority accommodation, because it will cease to have a legal authority on which to house them.

In that situation we could, in two years' time, literally see homeless people being thrown out of whatever poor accommodation they have on to the streets. If my interpretation of the legislation is at fault, then no doubt the Minister, when he comes to wind up this debate, will correct me, but many of us on this side of the House, fear that that is the sort of problem with which we will be faced.

Baroness Gardner of Parkes

My Lords, with the leave of the House, I should like to say that the noble Lord has not misunderstood me. I am well aware that the accommodation is for two years. The point I made was that the vast majority of people are housed within those two years. We have, on previous stages of this Bill, had a discussion on the fact that the council would have a certain flexibility if people had reached almost enough points to be eligible to be rehoused. We have had discussion on those points before.

Earl Russell

My Lords, I do not share the noble Baroness's confidence that everybody gets housed within two years. Even if there were only a few people who did not get housed within two years, those people would have a need which deserved attention. I have listened to the noble Baroness, Lady Oppenheim-Barnes, who was repeating what has been, in essence, the Government's argument on this ever since the Green Paper.

In effect, the Government argue that homelessness allows people to jump the queue. We do not accept that that is the case, but at least we understand the argument. This Bill has now thrown out the baby with the bathwater. It has gone to the other extreme, and it has not allowed homelessness to count for any points at all in local authority allocation schemes.

Allocation schemes should be on the basis of need. I think we would agree with that in all quarters of the House. We are saying that homelessness is one of the forms of housing need. That is the point that this amendment is designed to establish.

The noble Baroness, Lady Oppenheim-Barnes, may remember that I responded to her also in Committee and alleged that this Bill was setting up the system of a revolving door, whereby people go into temporary accommodation, do not get rehoused, become homeless again, go into bed and breakfast, and go round the cycle of temporary accommodation all over again. My noble friend Lady Hamwee offered what I believe is a fairly dramatic example of that, but there are plenty of others. In the research published by Shelter this morning there are numerous cases of this kind of thing happening, although not on such a dramatic scale. Under the existing system people are being moved two, three, four, five and six times in the course of their period of homelessness. The situation will, of course, get worse as the January changes in housing benefit begin to bite. As those changes, in their turn, are followed up by the changes in housing benefit for the under-25s, which the noble Lord, Lord Mackay of Ardbrecknish, I am sure will remember debating with some vigour on both sides of this Chamber, I think this revolving door situation will become worse. It has a very considerable effect as regards interrupting children's education.

In the case which my noble friend quoted just now, the children have had no regular education in five years. The damages award made by the local government ombudsman was in order to meet the cost of remedial classes to make up for lost schooling. That is a very considerable cost to public funds.

We on this side of the House believe that the Government are not nearly careful enough of public funds. This attempt to palm off the homeless on to the private sector, where the average cost of housing benefit will be £118 million a year greater, is a very good example. Average rents in the private sector are £60 a week as against £38 a week in the local authority sector.

What the Government are doing is a very considerable waste of money. People do not have to be housed within their particular local authority district, which means that they cannot take regular jobs—they do not know whether they will be able to get to them. That is one of the biggest ways in which the government system is wasting money. If just a few people can be put through into permanent housing in an area where they can work and where their children can go to school, so that they can start a constructive cycle going again, we shall be very much better off. That is what this amendment would achieve and that is why I hope that the House will view it with sympathy.

3.30 p.m.

The Minister of State, Department of the Environment (Earl Ferrers)

My Lords, the noble Baronesses, Lady Hollis and Lady Hamwee, will be sorry to find me answering the amendment when previously they had the pleasure of hearing my noble friend Lord Mackay answering. Perhaps I may say that I am sorry too. But I am very grateful to my noble friend Lord Mackay who jumped into the breach at Committee stage when I was unable to attend.

My noble friend Lady Gardner of Parkes said that she could accept the amendments and my noble friend Lady Oppenheim-Barnes said that she hoped that I would resist them. Perhaps I can satisfy both noble Baronesses. At least we start with a score of two-love. I shall try to assist them as best I can.

Baroness Hamwee

My Lords, with the leave of the House, if it were not possibly insulting to the noble Lord, Lord Mackay, I would say from these Benches that we—as I am sure is the case with the whole House—are delighted to see the noble Earl return. We are also delighted to have the noble Lord, Lord Mackay, with us.

Earl Ferrers

My Lords, that was an enormously gracious remark of the noble Baroness. I dare say she is delighted to see me back because she believes that she will get an easier ride than she had with my noble friend.

Housing is always a very sensitive issue, as is homelessness. The noble Earl, Lord Russell, said that we hoped everyone would be housed within two years. He also said that homelessness is one of the forms of housing need.

Let me put this point to him. Homelessness is a fact. If a person is homeless, it is a fact. We have tried to address the causes of homelessness. There could be many different reasons why people are homeless. It may well be that a person is not homeless for any length of time, but only homeless for a relatively short time. But when people are homeless, there is a reason for it. That is why we address the causes in Clause 157.

The purpose of all our reforms is to ensure that the claims of everyone who is seeking social housing are given proper consideration on a comparable basis. That is what the allocation provisions in Part VI of the Bill set out to do. We are considerably modernising the factors—it might frighten some of your Lordships—which local authorities should be required to take into account, because some of them have been in operation since 1935. We are doing so in order that they should reflect both long-term social needs and the present housing circumstances.

We are also maintaining a proper safety net for families and vulnerable people who lose their present accommodation through no fault of their own. That is what Part VII of the Bill provides for.

Part VII, which deals with the homelessness provisions, preserves the essential structure of the current homelessness legislation. It provides that, where a person is losing his existing accommodation and there is no suitable alternative available to him, the local authority must secure that accommodation is available to him for a minimum of two years. That period can be further extended, at the discretion of the authority or on re-application by the individual, if he continues to qualify.

Under the existing legislation, and the way in which it has been applied until now, a person who is owed a duty under the homelessness legislation has generally been rehoused in long-term accommodation in a little over half the time in which someone who is on the waiting list has had to wait. Those people have been put in long-term accommodation within eight months, whereas those who are on the waiting list have had to wait for 14 months. That is the result of a survey conducted by my own department.

The noble Lord, Lord Monkswell, thought that the Housing Bill would allow local authorities to evict people from their own accommodation. The noble Lord is a charming Member of your Lordships' House but sometimes he gets the wrong end of the stick. He has done so on this occasion.

Lord Monkswell

My Lords, with the leave of the House—

Earl Ferrers

The noble Lord cannot rise to his feet yet because I have not answered his question. I shall do so in a moment.

The two-year duty to house will recur if the household applies and if the person remains eligible. The local authority will have the power to continue to accommodate such people for longer than two years. I hope that that satisfies the noble Lord. The noble Baroness wags her head, but she often does that.

Lord Monkswell

My Lords, with the leave of the House, I am grateful to the noble Earl for giving way. He will recognise that there is a difference between the local authority having a duty to provide housing or ensure that people are housed for that two-year period and the responsibilities that they may have beyond those two years. The concern of a number of noble Lords on this side of the House, on an authoritative reading of the Bill, is that if local authorities are providing temporary housing for homeless people during that period, they will, at the end of the two years, effectively be debarred from providing housing for homeless people. By law, they will have to evict any temporarily housed persons whom they have under that category. That is our desperate fear.

Earl Ferrers

My Lords, I was trying to persuade the noble Lord that his fears were groundless. If I may say so, the noble Baroness is putting me off a little because she wags her head in dissent even before I have said anything.

The fact is that the noble Lord, Lord Monkswell, is perfectly right. When a person is homeless, the local authority is bound to provide accommodation for him. His case is assessed. It may be that he is given short-term housing. That can last up to two years. At the end of that two-year period, he can apply again if he has not already found other accommodation. That should not be confused with the two in three-year rule to which we shall come later. The local authority will still have a duty to house that person if he has not already found accommodation or, in other words, if he becomes homeless again. We find from research which has been conducted by the local authority associations that, in the great majority of authorities, those who are owed a duty under the homelessness legislation are rehoused more quickly than those who are on the waiting list. I ask whether that is fair. I take the example of the young girl with a baby who lives in bad and miserable conditions. The noble Lord, Lord Monkswell, shakes his head. I congratulate him on his percipience. In fact, he does not know what I am going to say, but he disagrees with me before I say it.

For example, there may be a young lady with a baby living in poor circumstances—bad housing with water running down the walls and so forth; she is on the housing list. There may be another young lady who is expecting a baby but in more convenient circumstances, possibly even comfortable circumstances. However, her mother gets cross with her because she is having a baby and says that she must leave. At the moment that young lady can go to the housing authority and say, "I am being made homeless". She is immediately put on the homeless list and jumps the queue ahead of the girl who lives in far worse circumstances. Which is the more deserving case? Is it the one being made homeless because the mother does not approve of her having a baby even though she may be living in good conditions, or the one living in bad conditions, sitting on the waiting list waiting to be rehoused?

Earl Russell

My Lords, I am grateful to the noble Earl for allowing me to intervene. Does the noble Earl understand that what he describes is not what the amendment proposes? The amendment proposes that local authorities should be able to balance one form of need against the other as seems to them appropriate.

Earl Ferrers

My Lords, I am coming to that. I was trying to give the noble Earl the picture in case he was not certain what it was. However, he and the noble Lord, Lord Monkswell, appear to be certain.

What has happened under the existing legislation is that homelessness has become a short-cut into long-term social housing and somebody who loses his present home can, if he is in priority need, simply require the local authority to rehouse him without taking any steps to avert the crisis or seek an alternative. We are providing that the homelessness duty is to secure accommodation for a minimum of two years. Research shows that over three-quarters of all people who are allocated council housing are rehoused within that period. Not everyone who is accepted for rehousing under the homelessness legislation wants permanent housing. A separate study carried out by my department showed that some 18 per cent. of those accepted for rehousing under the homelessness legislation had found other accommodation for themselves in a little over one year.

During our consideration of these provisions we heard a great many complaints about people who are owed a duty under the homelessness legislation being accommodated in unsatisfactory accommodation, or being required to move from one short-term letting to another. I should like to be able to reassure your Lordships on both counts. The accommodation which the local authority is required to secure under the new two-year duty must be "suitable"; we will return to that concept later. It is sufficient to say now that poor quality accommodation will not be acceptable.

Concern was also expressed that local authorities may not be able to find sufficient stock in the private rented sector for the discharge of the two-year duty. It was in recognition of that concern that, when the Bill was being considered in Committee in another place, my honourable friend the Minister for Housing announced that we would consider a revision of the arrangements which gmvern the leasing of private rented stock by local authorities.

I can confirm that, from 1st April 1997, local authorities will be able to take out leases for up to 10 years on property owned by private landlords in order to provide accommodation for those who are owed a duty under the homelessness legislation without being required to provide capital cover. There will be no restriction on their taking out further leases on property which had been the subject of an earlier lease. Those measures will ensure that local authorities have the ability to provide suitable and stable accommodation for all those to whom they owe a duty under the homelessness legislation.

The noble Baroness's amendment seeks, possibly unintentionally, to continue to make the homelessness legislation a direct route into long-term social housing. That is not what we wish to do. The noble Baronesses, Lady Hollis and Lady Hamwee, ask that local authorities be required to assess whether a household which has been accommodated for two years under the homelessness provisions should be offered accommodation through the allocation scheme within two years. If not, they propose that the local authority be required to assess whether the housing needs of that particular household are greater than others on the register. If that is the case, the authority would be required to give that household additional preference with a view to ensuring that it obtains permanent accommodation within two years of its first being owed a duty under the homelessness legislation.

There are technical reasons—and more substantive ones—why the amendment is not acceptable. At a technical level, I do not see how an authority can compare the housing needs of people who are on the housing register, which will include the person who is owed the homelessness duty, and on the same basis and, at the same time, make a separate assessment under the proposed provisions in the new clause of the housing needs of the person who is owed the homelessness duty. The noble Baronesses are mistaken in suggesting that the application of the new clause should run for two years from the time at which accommodation is provided as a result of the duty under Clause 183. The authority may seek to maintain the person who is threatened with homelessness in his present accommodation either for a few more months or, in some cases, indefinitely.

Therefore the requirements imposed by the clause could continue to be in place almost indefinitely. The real point is that the noble Baronesses are seeking to ensure that, once a family has been accepted for rehousing under the homelessness legislation, it should—even after it has been accommodated for two years and even if it is no longer in priority need—still be entitled to a degree of preference over others who may be living in wholly unsatisfactory accommodation but who are patiently waiting their turn on the housing list. The family who would gain will have been provided with perfectly reasonable accommodation for two years. The family who would lose could be living in damp conditions with poor sanitation and with no prospect of improving those conditions except through an offer of a tenancy through the housing register.

Social housing is intended for people with real long-term needs. It is generally taken up by people who cannot secure accommodation for themselves in the housing market in a way in which the majority of the population can. I suggest that it is wrong to suppose that social housing should go to people who could provide for themselves in other ways. The noble Baroness, Lady Hollis, said that the homeless family cannot wait, while those on the waiting list can; its need is more urgent.

The noble Baroness misses the point. The family accepted as homeless is given suitable accommodation for two years and families on the waiting list may be in much worse accommodation. I am sure your Lordships agree that they are the ones to be given priority. The noble Baroness, Lady Hamwee, referred to a family which had been moved 34 times. I agree that that is a distressing case and is unacceptable. Indeed, the homelessness code of guidance already states that and it is precisely to avoid such situations that we are giving the authorities a two-year duty to provide suitable housing.

Clause 157 requires local authorities to adopt a broad set of allocation criteria which will ensure that everyone with long-term housing needs receives fair consideration for the available stock of housing. If households who are owed a duty under the homelessness legislation have long-term needs which are greater than those of others who are on the housing register—and many of them will have—they can be confident that they will be offered permanent social housing through the register.

Homelessness is of course regrettable. However, it is a fact and not a cause. We want to address the causes which lead to people becoming homeless. When we have done that, we can right the situation. Those who are homeless will receive accommodation, but it should not be a short-cut to advancing in front of those already on the housing register. It is for that reason that I hope your Lordships will not agree to the amendment.

3.45 p.m.

Baroness Hollis of Heigham

My Lords, like the noble Baroness, Lady Hamwee, when I came to reply I intended to welcome back the noble Earl, Lord Ferrers, and say, like her, that we on these Benches are delighted to see him. However, after his assurance that he would be no more accommodating than his noble friend and after the answer that he has just given, I am sure he will understand if our delight has been just a little qualified. Nevertheless, we are delighted to see him in his place.

Perhaps I may use the shorthand used by the noble Earl and the two noble Baronesses, Lady Gardner of Parkes and Lady Oppenheim-Barnes. The noble Baroness, Lady Gardner of Parkes, pointed out a case of fraud, and she was right to do so. I am sure and I would expect that anyone from these Benches and of our political persuasion running a local authority where such a case was presented to them would respond in exactly the same way as the noble Baroness did. I have no more tolerance or patience with fraud or with anyone manipulating the system in a wilful and wrongful way than she has. There is nothing between us on that.

She went on to say—and this is at the heart of the amendment, and I believe I have her words correctly—that if there are genuine cases she expects that they will accumulate the necessary points within two years. I wish that she were right. If she were right this amendment would be unnecessary. It is precisely because, for quite a small number of people, she is not correct that we need this amendment as a safety net. That is my best information. For example, I am told that at present in Tower Hamlets there are more than 50 families who have been waiting for more than two years for appropriate council housing, having been accepted as homeless and placed in temporary accommodation, including bed and breakfast.

On the argument put forward by the noble Baroness, if she were presented with that information I am sure that she would wish to support this amendment. I agree that genuine applicants should be housed within the two years and should be allowed to acquire the necessary points to do so.

Baroness Gardner of Parkes

My Lords, I ask the leave of the House to intervene. I draw the attention of the noble Baroness again to the point that has been brought out in earlier debates; namely, that in certain large cities and inner London in particular there are particular difficulties, but those difficulties are not typical of everywhere. I believe that the Government are well aware of the particular need in the inner city areas, and that might have to be dealt with differently. That does not mean that the provision will apply everywhere else.

Baroness Hollis of Heigham

My Lords, the noble Baroness is absolutely right. This amendment would not need to apply, I hope, to most parts of the country. But there are places, which I was at pains to point out, where the pressures are so acute that this situation will arise. As the noble Baroness said, they include the inner London boroughs and many places in the south, including the coastal towns and some rural districts. Those are places where applicants have special needs for large accommodation. We have discussed this before. There may be two step-families coming together or a member of the family may be disabled. From what the noble Baroness has suggested, in those situations she will be asking her noble friends on the Front Bench to modify their approach. That will be no more and no less than this amendment does.

Baroness Gardner of Parkes

My Lords, I ask the leave of the House once again to intervene. I had asked my noble friends to allow a period of two years, in those exceptional circumstances, to be extended to perhaps three years, but not in the way proposed in this amendment.

Baroness Hollis of Heigham

My Lords, in that case I look forward to the support of the noble Baroness on an amendment later this afternoon which will do exactly that. I believe that we are using the same hymn sheet, but possibly different parts of it.

Perhaps I may now comment on the remarks of the noble Baroness, Lady Oppenheim-Barnes. I agree with her on the first point, but perhaps not on the second. The substantive point on which she is right is that the problem originates from the fact that there is a shortage of social housing to rent. That is why there is pressure. At this stage your Lordships will not particularly welcome a debate as to why there is that pressure, but it is certainly due to the fact that local authorities have been unable to recycle their capital receipts. Therefore, to replace the houses which have been sold there has been growing pressure on rented social housing. It is that problem that we are seeking to address. The point on which I disagree with the noble Baroness is that it is obviously true that many people on the waiting list are living in miserable conditions. But the fact that they do not become homeless means that their situation is usually not as intolerable as that of people who are homeless.

From my experience of chairing a housing committee for 11 years, for the most part the difference, as the DoE said in 1989, between families on the waiting list and those who become homeless is that the homeless cannot wait. That was my experience from local authority work and that was confirmed by the Government in 1989.

I now come to the Minister's point. He described this Bill as offering a safety net for homeless families. I believe that his advisers have failed to engage with what this amendment does. I say categorically that it does not do what the Minister asserted, which, according to his phrase, allows homeless families a direct route into permanent housing. It does not do that. I am genuinely distressed that his advisers thought fit to put that interpretation on the amendment. I do not know whether our amendment was so opaque, but the Minister said that is what it did.

Those who have been involved in these debates for many hours will know that that is not what this amendment does. It does not give homeless families a direct route into permanent housing. Under this Bill homeless families go into temporary housing for a statutory period of two years. The question which this amendment seeks to deal with—and I apologise to the House for perhaps not making this as clear as I should have done at the beginning—is what happens to these homeless families if, after two years in temporary accommodation, they have not got to the head of the queue. My noble friend Lord Monkswell is right in saying that that is the question.

As the Bill stands a local authority may continue to rehouse them after two years: the word is "may" and not "must". If the local authority decides not to continue to house them then the family is out. However, if in the process of housing them for two years the local authority has used its own hard-to-let housing, they have to be evicted. The Minister said that that was wrong, but he simply misunderstood my noble friend and that is why I shook my head. I was respecting the conventions at Report stage so I did not intervene during his speech, but perhaps another time I should do so.

The Minister has misunderstood this amendment. It does not give a direct route for homeless families into permanent housing. It states that if after two years a tiny minority of families who have been in temporary housing have not reached the head of the queue and otherwise face eviction—which must take place if they are living in local authority owned property—then this amendment allows local authorities to review all the circumstances. If it thinks it reasonable, the local authority should ensure that the family is given enough points to be rehoused into permanent housing. There is no direct route or queue jumping. They wait two years. If the noble Baroness, Lady Gardner of Parkes, is right—and I hope she is—most of the families will have their needs met within those two years, but some will not.

Rented social housing is in very short supply in the inner London boroughs, as the noble Baroness suggested, and in other areas, as the noble Lord, Lord Swinfen, pointed out in an earlier debate. He referred to families being hard to house because, for example, a member of the family may be disabled and need a large property. Those families may face eviction from temporary housing after two years and if they are living in a local authority owned house they must be evicted. Is that reasonable? Is it right to send fragile, vulnerable families, often with several children, into the churning of going in and out of temporary accommodation such as bed and breakfast accommodation, hotel or private rented accommodation and so on? It is not that they queue jump or that there is a direct route into permanent housing but merely, as the Minister himself said, that there should be a safety net for them.

However, if after two years a family in temporary housing has not qualified for permanent housing, then the local authority may, if it believes it reasonable, in comparison with other people on the list, ensure that they have enough points to qualify for permanent housing, which they would get if they lived in a different authority area. That is all this amendment does. It simply does what the Minister said it should do, which is to put in a safety net. If we do not there remains a black hole for some of the most vulnerable and fragile families.

It is a modest amendment. It will probably affect only a few thousand out of the 120,000 homeless families who present themselves to local authorities each year. But those families are in an acute situation. They are not queue jumping. The amendment merely provides that after two years' waiting, in often poor quality temporary housing, we should not send them churning back into bed and breakfast accommodation to go through the cycle again. Remembering that this is not providing a direct route into permanent housing and it is not queue-jumping—it is merely including a means of rescue and a safety net for those who would otherwise be turned out after a wait of two years—I should like to test the opinion of the House on the amendment.

3.59 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 145.

Division No. 1
CONTENTS
Acton, L.	Barnett, L.
Addington, L.	Berkeley, L.
Annan, L.	Blackstone, B.
Ashley of Stoke, L.	Broadbridge, L.
Avebury, L.	Carlisle, Bp.

Carlisle, E.	McNair, L.
Carmichael of Kelvingrove, L.	Masham of Ilton, B.
Chichester, Bp.	Mayhew, L.
Chorley, L.	Methuen, L.
Clinton-Davis, L.	Milner of Leeds, L.
Cocks of Hartcliffe, L.	Mishcon, L.
David, B.	Monkswell, L.
Dean of Thornton-le-Fylde, B.	Morris of Castle Morris, L.
Desai, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Palmer, L.
Donoughue, L.	Peston, L.
Dormand of Easington, L.	Plant of Highfield, L.
Dubs, L.	Prys-Davies, L.
Elis-Thomas, L.	Rea, L.
Ezra, L.	Redesdale, L.
Falkland, V.	Russell, E. [Teller.]
Fisher of Rednal, B.	Sainsbury, L.
Gallacher, L.	Seear, B.
Geraint, L.	Serota, B.
Graham of Edmonton, L. [Teller.]	Shepherd, L.
	Simon, V.
Gregson, L.	Stallard, L.
Halsbury, E.	Stoddart of Swindon, L.
Hamwee, B.	Strabolgi, L.
Harris of Greenwich, L.	Taverne, L.
Haskel, L.	Taylor of Blackburn, L.
Hayman, B.	Taylor of Gryfe, L.
Hilton of Eggardon, B.	Thomas of Walliswood, B.
Hollis of Heigham, B.	Thomson of Monifieth, L.
Hooson, L.	Thurso, V.
Hutchinson of Lullington, L.	Tonypandy, V.
Jeger, B.	Tope, L.
Jenkins of Hillhead, L.	Tordoff, L.
Jenkins of Putney, L.	Turner of Camden, B.
Kilbracken, L.	Wallace of Saltaire, L.
Kintore, E.	White, B.
Lester of Herne Hill, L.	Wigoder, L.
Lockwood, B.	Williams of Elvel, L.
Longford, E.	Williams of Mostyn, L.
McIntosh of Haringey, L.	Winston, L.
NOT-CONTENTS
Aberdare, L.	Clitheroe, L.
Addison, V.	Cochrane of Cults, L.
Ailsa, M.	Cockfield, L.
Aldington, L.	Courtown, E.
Alexander of Tunis, E.	Cranborne, V. [Lord Privy Seal]
Allenby of Megiddo, V.	Cuckney, L.
Ashbourne, L.	Cullen of Ashbourne, L.
Astor of Hever, L.	Davidson, V.
Balfour, E.	Dean of Harptree, L.
Belhaven and Stenton, L.	Denham, L.
Birdwood, L.	Demon of Wakefield, B.
Blaker, L.	Derwent, L.
Blatch, B.	Digby, L.
Blyth, L.	Dixon-Smith, L.
Boardman, L.	Downshire, M.
Bowness, L.	Eccles of Moulton, B.
Boyd-Carpenter, L.	Ellenborough, L.
Brabazon of Tara, L.	Elles, B.
Bridgeman, V.	Elliott of Morpeth, L.
Brigstocke, B.	Elton, L.
Bruntisfield, L.	Erne, E.
Burnham, L.	Fanshawe of Richmond, L.
Butterworth, L.	Ferrers, E.
Campbell of Alloway, L.	Fraser of Carmyllie, L.
Campbell of Croy, L.	Gardner of Parkes, B.
Carnegy of Lour, B.	Goschen, V.
Carnock, L.	Gray of Contin, L
Cayzer, L.	Hailsham of Saint Marylebone, L
Chalker of Wallasey, B.	Hamilton of Dalzell, L.
Charteris of Amisfield, L.	Harding of Petherton, L.
Chelmsford, V.	Harrowby, E.
Chesham, L. [Teller.]	Hayhoe, L.
Clanwilliam, E.	Headfort, M.

Henley, L.	Oppenheim-Barnes, B.
Holderness, L.	Orkney, E.
Hooper, B.	Orr-Ewing, L.
Howe, E.	Oxfuird, V.
Hylton-Foster, B.	Park of Monmouth, B.
Inglewood, L.	Pearson of Rannoch, L.
Johnston of Rockport, L.	Pender, L.
Kimball, L.	Pilkington of Oxenford, L.
Kinnoull, E.	Plummer of St. Marylebone, L
Lane of Horsell, L.	Pym, L.
Lauderdale, E.	Rankeillour, L.
Leigh, L.	Rawlings, B.
Lindsay, E.	Renfrew of Kaimsthorn, L.
Liverpool, E.	Renton, L.
Lloyd-George of Dwyfor, E.	Renwick, L.
Long, V.	Ridley, V.
Lucas, L.	Romney, E.
McColl of Dulwich, L.	St Davids, V.
McConnell, L.	Saltoun of Abernethy, Ly.
MacFarlane of Bearsden, L.	Seccombe, B.
Mackay of Ardbrecknish, L.	Shannon, E.
Mackay of Drumadoon, L	Sharples, B.
	Shaw of Northstead, L.
MacLehose or Beoch, L.	Simon of Glaisdale, L.
Macleod of Borve, B.	Skelmersdale, L.
Marlesford, L.	Strathclyde, L.
Mersey, V.	Sudeley, L.
Miller of Hendon, B.	Swinton, E.
Monson, L.	Thomas of Gwvdir L
Mountevans, L.	Tollemache, L.
Mowbray and Stourton, L.	Trumpington, B. [Teller.]
Moyne, L.	Vivian, L.
Munster, E.	Waterford, M.
Murton of Lindisfarne, L.	Wedgwood, L.
Newall, L.	Westbury, L.
Noel-Buxton, L.	Whitelaw, V.
Norfolk, D.	Wilcox, B.
Norrie, L.	Wise, L.
Northesk, E.	Wynford, L.
O'Cathain, B.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.8 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) moved Amendment No.2: Page 97, line 35, at end insert ("section 153(1A) or").

The noble Lord said: My Lords, in moving Amendment No. 2, I should like to speak also to Amendments Nos. 7, 9, 10, 12 and 14.

Perhaps I may echo the noble Baroness and welcome my noble friend Lord Ferrers back to the House. I do so with a great deal of relief but, unfortunately, almost immediately I have to return to your Lordships because this part of the Bill affects part of the Government's policy on asylum seekers and the tie-in with the changes which we have made to benefits.

I have told the House, on what must be beginning to feel like an excessive number of previous occasions, that the Government are clear that social housing, which is intended to meet the ongoing needs of people who require low-cost affordable housing over the long term, should not be used to accommodate people who may be here for only a short time. We intend to ensure that persons who are subject to immigration control do not have access to long-term tenancies allocated by a local housing authority unless they have the right to remain here indefinitely and the right to receive public funds.

As drafted, Clause 153 provides the Secretary of State with the power to prescribe by regulations classes of persons who are or are not qualified to be allocated housing by a local authority. In practical terms, this means that any exclusion from entitlement to be allocated a social tenancy would be achieved by subordinate legislation: in other words, by regulation. Your Lordships will be aware that the Court of Appeal on 21st June, in reviewing the lawfulness of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996, has recently expressed concern about the vires of subordinate legislation which excludes certain asylum seekers from entitlement to non-contributory social security benefits such as income support and housing benefit.

As your Lordships will recall, in the light of that court judgment we have recently amended Clause 9 of the Asylum and Immigration Bill, which deals with the housing entitlement of persons subject to immigration control. The effect of those amendments was to make clear on the face of that Bill that persons who are subject to immigration control are not entitled either to be allocated a council tenancy or to assistance under the homelessness legislation, unless they fall within a class of person prescribed by regulations. That puts beyond doubt, in primary legislation, that such persons do not have an entitlement unless they are prescribed as so having. Your Lordships will not be surprised to hear that we wish to make similar amendments to this Bill in respect of persons who are not qualifying persons for the purposes of allocating tenancies under Part VI and also in respect of persons who are not entitled to assistance under Part VII. I shall deal with that part later when we come to it.

Amendment No. 7 will achieve that end by providing that all persons subject to immigration control will be ineligible to be allocated a social tenancy by a local housing authority unless they were to fall into a class of person prescribed by regulations as being qualified. Notwithstanding the issue of vires and lawfulness, the practical effect of this amendment is nil. We are in the same position as we were with the original clause. The classes of persons we intend to exclude from entitlement to be allocated a tenancy by a local housing authority are not changed.

Under Clause 153 as drafted, we would prescribe by regulations those classes of person subject to immigration control which are excluded from entitlement. Under the clause as it would be changed by these amendments, we would prescribe by regulations those classes which are entitled. We intend that an order under Clause 153(1A) would specify that the following classes of person, subject to immigration control, are qualifying persons in relation to local housing authorities. They are, first, refugees; secondly, persons granted exceptional leave to remain; and, thirdly, persons having indefinite leave to remain. We intend that such regulations would be made at the outset on commencement so that Amendment No. 7 would put beyond doubt the lawfulness of excluding certain classes of person subject to immigration control from entitlement to be allocated a local authority tenancy. Amendments Nos. 9, 12 and 14 are drafting amendments consequential upon that amendment.

Amendment No. 10 would clarify that regulations made under Clause 153(2) may prescribe classes of person who are or are not qualifying persons in respect of either an individual authority or in respect of local housing authorities generally. We have been over this argument on a fair number of occasions before, and I commend these amendments to your Lordships.

4.15 p.m.

Earl Russell

My Lords, yesterday a number of your Lordships probably had rather more leisure than I had for applauding the exploits of Richard Krajicek at Wimbledon. The few moments that I was able to watch, in the time I could take off from considering this Bill, were well worth it. It was a clear reminder of how much a country may gain in credit and reputation from what is done by those who come to it as refugees. If his parents had come to this country now, I believe he would never have been born; but I will take that matter no further now.

This is a technical amendment. It substitutes the vires of primary legislation for the vires of regulation. That, so far as it goes, is a laudable change, though it will of course take up a certain amount of time in the next Parliament, and that will have to be found. It is wide of the point of the judgment. I understand the Government's caution; if it makes them a little more cautious in future about what they set out to do by regulation, that may be a good thing. The point may arise again when we come to Amendment No. 8 and those amendments which are grouped with it.

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment No. 3: Page 97, line 36, at end insert— ("( ) For the avoidance of doubt, under section 157(2) of this Part the local housing authority may in exceptional circumstances give additional preference to persons to whom the authority are subject to a duty under section 181 of this Act.").

The noble Baroness said: My Lords, I wonder, ever hopeful, whether this amendment might acquire the support of the Government Benches and possibly even of the Government themselves. It refers to the issue of exceptional circumstances. I believe that your Lordships' House is occasionally persuaded by what I would like to think is the stronger argument, and this may be one such case; I do not know. Only those people who are eligible for permanent council housing are those at the top of the waiting list. Most homeless people are on the waiting list in the usual way, living with family or friends, or living in a six-months shelter awaiting their turn. Then arrangements may break down and they become homeless. Sometimes the family becomes homeless shortly before they are due to be rehoused from the waiting list. The Minister made it clear in Committee by repeating the assurances made in another place that the local authorities could, in exceptional circumstances, give additional preference to homeless people near the top of the waiting list. This amendment seeks to put the Minister's words on to the face of the Bill to avoid doubt.

What the amendment does—and we welcomed the Government's response—is to allow a modest amount of flexibility in the system. Somebody is sharing accommodation and they are on the waiting list, having waited perhaps one year and eleven-and-a-half months or maybe they are two months away from a permanent allocation. Although they are just a very short time away from permanent reallocation their two years is up and they are forced to move into yet another home in the meanwhile. No sooner will they have moved in the furniture, contacted the utilities and changed the address for council tax than out they move again, all at considerable cost and with great stress being caused to the family concerned as well as being destabilising for the children.

The Minister could, if he wished, define by guidance the word "exceptional". We pressed him on what this word meant at Committee, but the Minister merely emphasised that, according to the Oxford English Dictionary, "exceptional" meant exceptional and that local authorities had that exceptional discretion. He would not go further. I hope that the Minister would like to see the words he used in Committee immortalised on the face of the Bill: I am sure that local authorities would. It is the aim of this amendment that, as the Minister has said, local authorities may in exceptional circumstances, such as the one I have envisaged, rehouse a family rather than send them through the process when they only have six weeks, two months or whatever to go. I think that local authorities, to avoid the possibility of litigation, need to have that assurance so that it is not just in the Minister's words printed in Hansard but printed on the face of the Bill. I beg to move.

Baroness Hamwee

My Lords, I support the amendment. I have sympathy for the Minister who said at the last stage that by definition he could not define "exceptional". I believe that this amendment is an appropriate way to tackle the issue. It is right that the matter should go on the face of the Bill. If the noble Earl, Lord Ferrers, now asks the mover of the amendment to define "exceptional", I believe that the noble Baroness is quite right to quote his colleague's words back at him.

Earl Russell

My Lords, I believe that we badly need this amendment because of the effect of Clause 157(8) of the Bill. That provides that a local authority shall not allocate housing accommodation except in accordance with its allocation scheme. If there is no provision for exceptions the words of Clause 157(8) will prove extremely inconvenient. One does not want a world that is made up of nothing but exceptions. As was said in this House by the first Earl of Strafford, the prerogative is to be used as God doth His omnipotency—upon extraordinary occasions. But there must be prerogative if there must be extraordinary occasions. There are plenty of extraordinary occasions. One can immediately think of many categories where, to avoid a considerable degree of social harm, it may be necessary to allow a local authority on occasion to give an additional priority.

Take, for example, children leaving care. They are some of the worst treated people in the whole of society. The problems created are likely to be with us for the rest of those people's lives. We are likely to pay heavily for them. There are the problems of those cared for in the community who may be discharged from medical or other accommodation when their needs are exceptional and who are not altogether fit to cope with the housing market. I take as an example a person who regularly can be seen on the route that I take to the tube station in the morning and who harangues every passer-by with unintelligible imprecations. Such people are not necessarily fit for the amount of freedom they have been given. If there is no exceptional freedom to provide for them tragedies of many kinds may result.

Take the example of women who leave refuges after they have been victims of domestic violence. Ever since publication of the Green Paper there has been intense concern among those involved in refuges about the danger of urgently needed places silting up because people cannot be rehoused. Being able to exercise a reasonable preference in cases like that may be vital to avoid severe problems. People who have been through that experience need a new permanent environment in order to get back on their feet again. To stand on one's own two feet is all very well. But, generally, one needs ground underneath one's feet before one can do it.

Amendment No. 4 takes its wording from the Children Act. It is my understanding that Amendments Nos. 3 and 4 are grouped together. That draws attention to the fact that we are perpetually passing on problems from housing to social services. There must be a two-way traffic; if not, there will be a traffic jam. I am happy to support the amendments.

Earl Ferrers

My Lords, the noble Baroness explained the reasoning behind the amendment, for which I am grateful. I am amused by the company the noble Earl, Lord Russell, keeps when he goes to the tube station every day. I believe that he is very generous to take a person who perpetually harangues everyone in sight—but evidently not the noble Earl, Lord Russell. I presume that if he harangued the noble Earl he would not get a lift the next day.

I should like to address the amendment by explaining what Clause 157 does. It sets out the factors to which each local authority must give reasonable preference in framing its allocation scheme. Those factors take into account a broad range of housing circumstances and social conditions. That is all that the legislation says about the way in which an authority must allocate its stock. It is for each authority to decide the details of the scheme it wishes to adopt for its area, subject to any principles that the Secretary of State may prescribe on matters such as the involvement of elected members in individual cases and how it operates the scheme.

This means that the authority has considerable discretion as to how to interpret the factors to which it is required to give reasonable preference. The expression "reasonable preference" appears in the provisions governing housing allocations contained in the Housing Act 1985. Indeed, the same term is found in earlier legislation dating back to 1935.

The amendment seeks to address the question of what would happen to a household which, for example, had been on the waiting list for some time and was perhaps living in poor conditions. The household might be nearing the point where it would be allocated a house. It may be that a fire occurs, the house is burned down and the household suddenly becomes homeless. The household is rehoused under the new two-year duty, possibly in a house which is in better condition than the one which has been burned down. Because the accommodation provided under the two-year duty must be suitable within the meaning of Clause 192, the household will lose at least some of the points which it had on the waiting list because it had been in poor accommodation. No doubt many of your Lordships will feel that that is unfair since the household will have to wait longer for permanent rehousing than it would have done had the house not burned down.

We are not setting out in legislation the way in which an authority will operate its allocation scheme in relation to individual cases. That must be a matter for its discretion. We do not wish to specify how each local authority handles such a case. An authority must apply the principle of reasonable preference in setting up its allocation scheme. Within its scheme, which must reflect the criteria set out in Clause 157(2), it has discretion to make provision for special cases of this kind and to move them directly into permanent housing if it feels that the particular circumstances justify it. Clearly, the authority can use this discretion only within the limits of that which is reasonable in a particular case. But if the Bill were to contain a general provision on this point, it would run counter to the authority's duty to give reasonable preference to the classes of person mentioned in Clause 157. Some local housing authorities already exercise their discretion in particular cases in just this way under present provisions. Since the key phrase in the legislation, "reasonable preference", appears in both the existing and the new legislation I see no reason why authorities should not continue to do so.

I draw the attention of the House to the provision which follows the list of allocation criteria in Clause 157(2): The scheme shall also be framed so as to secure that additional preference is given to households … consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future". That would enable an authority to give additional preference to someone with a need for long-term housing on medical and welfare grounds if he could not reasonably be expected to secure accommodation for himself. I believe that that would meet the cases of most concern to your Lordships.

The amendment of the noble Baroness seeks to formalise the extent of a local authority's discretion. That may be a contradiction in terms in that it is quite difficult to formalise a discretion. I believe that that would be a pity. The amendment seeks to set out in specific terms what the Bill already provides for in the construction of Clause 157. So I hope that the noble Baroness will not think I am churlish if I say to her that the Bill would be better without the amendment because that which the noble Baroness wishes to see incorporated in the Bill is, in fact, already incorporated.

4.30 p.m.

Baroness Hollis of Heigham

My Lords, with the leave of the House, before responding to the debate I would like to ask the Minister a question that follows from what he was saying.

One of the issues that I think has not been clarified at any stage during the debates is on what the points system is based. I had assumed from what had been said in the other place and at earlier stages in this Bill by the Minister's noble friend Lord Mackay—but obviously I do not want to put words into his mouth—that the number of points allocated to a homeless person when he went into temporary accommodation depend on the condition of homelessness existing when he went on to the waiting list rather than on the quality of the temporary housing offered to him. In other words, by accepting temporary accommodation, he would go back down the list—the snake effect. If that were so, I can see it would be very difficult for local authorities. Applicants would then say "Well, I don't want good temporary accommodation even for two years if that means that I won't get permanent housing for another four or five. I would rather take my chance in poorer temporary housing and not lose my points score, and then get my entitlement to permanent housing in due course".

Will the Minister clarify that point which is absolutely pivotal to our understanding? I had understood that the situation from which homeless families came determined their points score: that they waited in temporary accommodation and that whatever the nature of the temporary accommodation it did not affect their points. But something that the Minister said seemed to suggest that the eligibility for permanent housing would depend on the points obtained from the temporary housing in which they were subsequently housed. He used the case of somebody whose house was burnt down. In that case, as I said, there would be major problems for people trying to calculate whether they should accept this temporary house rather than another according to the points it would carry with them for their family. I am sure that that is not a route that local authorities would want to go down.

That point is so pivotal that it would be very helpful if we could have an answer. It may be that the Minister would prefer to wait a moment or two and come back with it, but we really do need this clarified. I am happy to wait and go on to some other points if that would help the Minister. It is a major point for us, and I am trespassing on the indulgence of the House.

Earl Ferrers

My Lords, I am grateful to the noble Baroness for drawing attention to a point which she feels is uncertain. If I made it uncertain for her, I am sorry. The reason for the uncertainty is that I gave the example of somebody living in a poor house, who had his house burnt down but, had that not happened he would have been almost at the top of the list. He is then moved temporarily into a bigger house and, as a result, it might be thought that he goes down to the bottom of the list. That is a matter which local authorities will have to decide. The point is perfectly clear.

This is where we do not want to be confused about homelessness. I shall take the noble Baroness through the steps relatively carefully. A person comes to a local authority and says "I haven't got a house". He is made homeless unintentionally as opposed to a failure to pay the rent. It is then the duty of the local authority to see that that person is housed. If he turns up at nine o'clock at night, he might be sent into a bedsitting room or whatever it may be. The next day the local authority will see the person and ask why he is homeless. The reasons for the homelessness or the reasons for the person being in that position will be discussed.

The allocation of points will depend very much on that which is contained in Clause 157 which, as I said when speaking to the first amendment, is really a matter of trying to find the cause of homelessness. It may be that the cause of homelessness is that the wife has walked out or it may be that the house has burnt down. But long-term housing is determined by Clause 157(2) which refers to giving reasonable preference to people occupying insanitary or overcrowded housing, people occupying housing accommodation which is temporary or occupied on insecure terms, families with dependent children, households consisting of or including someone who is expecting a child, and so forth. That is what determines the right of people to long-term housing. The fact that they have been given short-term housing does not put them at an advantage or at a disadvantage over whether they obtain long-term housing.

I hope that that has made the point relatively clear. The points systems will take account of the level of security of tenure which a person has.

Baroness Hollis of Heigham

My Lords, with the leave of the House, I hope that the Minister will correct me if I have misunderstood him, but I think the Minister said that he used the words local authorities will have to decide. In other words, there is an element of discretion as to the basis upon which the local authorities will determine the points system: either the conditions of homelessness from which the people concerned emerged, or the quality of temporary accommodation which they now occupy. I think that is what the Minister said. If I have misunderstood that, I would be very grateful to be corrected.

He went on to say that temporary accommodation, being insecure, would obviously come into the reasonable preference. But studying my own local authority's points system, insecure accommodation carries only, for example, 10 points whereas medical need may carry 100 points, and shared facilities may carry 100 points. So simply saying that because they are insecure gives them reasonable preference will not give them enough points certainly to bring them back up to the level at which they entered the situation of temporary housing because insecure accommodation as such, in the typical local authority points system, does not carry very many points.

I repeat, as I understand it, people may go down the "snake" by going into temporary housing but that is for the local authority to determine. Is that correct? I apologise to your Lordships but it is such a pivotal point that it would be very helpful for all of us to have clarification of that. I am happy to move on and ask the Minister to come back at some appropriate stage because without this clarification, local authorities will not know how they are allocating their points scheme. I am in the Minister's hands. I am very happy to continue or to give way to him if the House will permit.

Earl Ferrers

My Lords, with the leave of the House, I shall try to clarify the point with which the noble Baroness is concerned. If she looks at Clause 157(2) one of the priorities to which preference will have to be given is contained in paragraph (b): people occupying housing accommodation which is temporary or occupied on insecure terms". Therefore in the case which I gave of a person's house which is in a scruffy order being burnt down and that person being put into temporary accommodation because of that, his points allocation would not drop. But I think this is an important point. I would like to write to the noble Baroness because I would not like to mislead her.

Baroness Hollis of Heigham

My Lords, again I thank the Minister for that and therefore I shall now wind up this debate. I am very glad that we have had the opportunity of this exchange. Perhaps it is our fault that we did not seek to have this clarified earlier but I had assumed that people continue to carry their points with them into whatever temporary housing they went. Something that the Minister said alarmed me and suggested a "snake" possibility in which case there are, to change my animal metaphor, elephant traps that we had not even anticipated for local authorities in seeking to manage this legislation. I would be glad if the Minister could write to me as speedily as possible. That would then allow us the opportunity to revisit this issue, if necessary, on Third Reading.

Apart from that, I have very little to say, for which I am sure your Lordships will be duly grateful. However, the noble Baroness, Lady Hamwee, said that she could not define "exceptional". The noble Earl, Lord Russell, went on to give several instances of that which illustrated the point very well for us over and beyond the situation in which the person is six weeks' away from being housed.

The Minister assures us that this point is well covered already in the Bill. I have to say we do not believe that it is. We would not be moving this amendment if it were. He accepts the principle that local authorities do have the right to exercise their discretion in these exceptional circumstances. He believes it is already in the Bill but we do not see it clearly in the Bill—in other words we are now simply talking about drafting. For the avoidance of doubt, I should like to seek to persuade your Lordships that this phrase, from which the Minister does not dissent, should actually be in the Bill so that it is clear.

If that were clear and in the Bill, our advisers would not be asking us to press the amendment. Therefore, I wish to test the opinion of the House. I do not do that because there is a difference of substance between us and the Minister but there is a difference in relation to how transparent are the Minister's words. He believes that what we want is already there but we cannot see those words in the clause. That is why I wish to press the amendment. There is no disagreement between us as regards the issue but merely about the transparency of what the Government say is the case. I hope that, even at this late stage, the Minister may agree to include the words: For the avoidance of doubt". However, if he is not prepared to do so, I wish to test the opinion of the House.

4.40 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 147.

Division No. 2
CONTENTS
Acton, L.	Hutchinson of Lullington, L
Addington, L.	Jeger, B.
Avebury, L.	Jenkins of Hillhead, L.
Barnett, L.	Jenkins of Putney, L.
Berkeley, L.	Kennet, L.
Broadbridge, L.	Kilbracken, L.
Bruce of Donington, L.	Lester of Herne Hill, L.
Carlisle, Bp.	Lockwood, B.
Carlisle, E.	Longford, E.
Clinton-Davis, L.	McGregor of Durris, L.
Cocks of Hartcliffe, L.	McIntosh of Haringey, L.
David, B.	McNair, L.
Desai, L.	McNally, L.
Donaldson of Kingsbridge, L.	Mayhew, L.
Donoughue, L.	Methuen, L.
Dormand of Easington, L.	Milner of Leeds, L.
Dubs, L.	Monkswell, L.
Elis-Thomas, L.	Morris of Castle Morris, L.
Falkland, V.	Nicol, B.
Farrington of Ribbleton, B.	Palmer, L.
Fisher of Rednal, B.	Plant of Highfield, L.
Gallacher, L.	Prys-Davies, L.
Geraint, L.	Rea, L.
Graham of Edmonton, L.	Redesdale, L.
[Teller.}	Russell, E. [Teller.]
Gregson, L.	Sainsbury, L.
Halsbury, E.	Seear, B.
Hamwee, B.	Scrota, B.
Harris of Greenwich, L.	Shepherd, L.
Haskel, L.	Stallard, L.
Hayman, B.	Stoddart of Swindon, L.
Hollis of Heigham, B.	Strabolgi, L.
Holme of Cheltenham, L.	Taverne, L.
Hooson, L.	Taylor of Blackburn, L.
Hughes, L.	Taylor of Gryfe, L.

Thomson of Monifieth, L.	Wharton, B.
Tonypandy, V.	White, B.
Tope, L.	Wigoder, L.
Tordoff, L.	Williams of Elvel, L.
Turner of Camden, B.	Williams of Mostyn, L.
Wallace of Saltaire, L.	Winchilsea and Nottingham, E
NOT-CONTENTS
Aberdare, L.	Hayhoe, L.
Addison, V.	Headfort, M.
Ailsa, M.	Henley, L.
Aldington, L.	Hogg, B.
Alexander of Tunis, E.	Holderness, L.
Allenby of Megiddo, V.	Hooper, B.
Ashboume, L.	Howe, E.
Astor of Hever, L.	Hylton-Foster, B.
Balfour, E.	Inglewood, L.
Belhaven and Stenton, L.	Johnston of Rockport, L.
Biddulph, L.	Kimball, L.
Birdwood, L.	Kintore, E.
Blaker, L.	Knutsford, V.
Blatch, B.	Lane of Horsell, L.
Blyth, L.	Lauderdale, E.
Boardman, L.	Leigh, L.
Bowness, L.	Lindsay, E.
Boyd-Carpenter, L.	Liverpool, E.
Brabazon of Tara, L.	Long, V.
Bridgeman, V.	Lucas, L.
Brigstocke, B.	Lucas of Chilworth, L.
Brougham and Vaux, L.	McColl of Dulwich, L.
Bruntisfield, L.	Mackay of Ardbrecknish, L.
Burnham, L.	Mackay of Drumadoon, L.
Butterworth, L.	Macleod of Borve, B.
Cadman, L.	Marlesford, L.
Campbell of Alloway, L.	Mersey, V.
Campbell of Croy, L.	Miller of Hendon, B.
Carnegy of Lour, B.	Monk Bretton, L.
Carnock, L.	Mowbray and Stourton, L.
Chalker of Wallasey, B.	Moyne, L.
Chelmsford, V.	Munster, E.
Chesham, L. [Teller.]	Murton of Lindisfame, L.
Clanwilliam, E.	Nelson, E.
Clitheroe, L.	Newall, L.
Cochrane of Cults, L.	Noel-Buxton, L.
Courtown, E.	Norfolk, D.
Cox, B.	Norrie, L.
Cranborne, V. [Lord Privy Seal.]	Northesk, E.
Crathome, L.	O'Cathain, B.
Cuckney, L.	Oppenheim-Barnes, B.
Cumberlege, B.	Orr-Ewing, L.
Davidson, V.	Oxfuird, V.
Dean of Harptree, L.	Park of Monmouth, B.
Denham, L.	Pearson of Rannoch, L.
Denton of Wakefield, B.	Pender, L.
Digby, L.	Pilkington of Oxenford, L.
Dixon-Smith, L.	Plummer of St. Marylebone, L.
Downshire, M.	Pym, L.
Eccles of Moulton, B.	Rawlings, B.
Ellenborough, L.	Rees, L.
Elles, B.	Renfiew of Kaimsthorn, L.
Elliott of Morpeth, L.	Rennell, L.
Elton, L.	Renton, L.
Erne, E.	Renwick, L.
Erroll, E.	Romney, E.
Ferrers, E	SL Davids, V.
Fraser of Carmyllie, L.	Saltoun of Abernethy, Ly.
Gainford,L.	Seccombe, B.
Gardner of Parkes, B.	Sharpies, B.
Goschen, V.	Shaw of Northstead, L.
Gowrie, E.	Skelmersdale, L.
Gray of Contin, L.	Strathclyde, L. [Teller.]
Hailsham of Saint Marylebone, L.	Sudeley, L.
Hamilton of Dalzell, L.	Swansea, L.
Harding of Petherton, L.	Swinton, E.
Harmsworth, L.	Teviot, L.

Teynham, L.	Waterford, M.
Thomas of Gwydir, L.	Wedgwood, L.
Tollemache, L.	Whitelaw, V.
Torrington, V.	Wilcox, B.
	W yatt of Weeford, L.
Trumpington, B.	Wynford, L.
Vivian, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.50 p.m.

Baroness Hamwee moved Amendment No. 4: Page 97, line 36, at end insert— ("( ) The provisions of this part do not apply where the local housing authority consider the welfare of a person within their area is likely to be seriously prejudiced if they do not provide him with settled accommodation.").

The noble Baroness said: My Lords, this is another attempt to skin the cat. It is a gentler attempt to skin it, if any skinning of a cat can be gentle. The amendment addresses the issue of exceptional circumstances. I hope that it may appeal to your Lordships as it is an attempt to define a little more precisely a matter which I accept is difficult to define. It constitutes, perhaps, a more lateral approach to the subject. This modest amendment would permit immediate rehousing of people who are not on the register, but only if not to do so would seriously jeopardise their welfare. The provision would be subject to Clause 152(5) which gives the Secretary of State powers to restrict or attach conditions to this paragraph. I say that with some hesitation as the views of these Benches on such powers for the Secretary of State are well known. I hope, however, that there may be a temptation to look favourably on the amendment.

The wording of the amendment borrows from that of the Children Act which provides at Section 20(3) that a local authority has to provide accommodation for a child in need who has reached the age of 16 and, whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation". I wonder about the use of that infinitive, but never mind.

The amendment would enable local authorities to house a limited number of people—I believe that would include children in need as defined by the Children Act—without subjecting them to the requirements of Part VI.

The Government's consultation paper on housing allocations makes much of local discretion. The amendment is wholly consistent with the paper. It would allow flexibility within the constraints of the requirement for serious prejudice, but it would put on the face of the Bill certain exceptions. Regulations offer flexibility, but, by leaving matters to regulation, local authorities may well find it difficult to plan their provision and to develop the necessary partnerships that are required to provide assistance to certain vulnerable groups. I suggest that certain allocations should be dealt with in the manner proposed in this amendment.

On a previous amendment my noble friend gave some examples of people who might be seriously prejudiced without such an obligation. He referred to young people leaving care and those who require community care services. I would add—my noble friend may have referred to this—women fleeing situations of domestic violence. My noble friend referred to accommodation which is designed to be temporary—and which in the rather ugly phrase we have developed—is "likely to silt up". I am not suggesting that people who fall in the categories that I have mentioned will necessarily be caught by the wording of the amendment. That may be the case, but the criterion will be serious prejudice and not particular circumstances. I hope your Lordships may feel that this is an appropriate matter to be included on the face of the Bill. I beg to move.

Earl Ferrers

My Lords, I understand that the noble Baroness is keen to ensure that everything is as right as it should be. She said there was another way of skinning the cat. I wish she would leave the poor pussy alone because it would be much easier if she did. I think the provision is unnecessary because it seeks to achieve, outside the provisions of Part VI, the very things which Part VI is intended to provide. The fundamental purpose of the reforms in this Bill is to ensure that long-term social housing goes to households which have the greatest need. That is the whole principle behind the reforms. The arrangements are designed to give local authorities the direction which is needed to meet housing need, while giving them the ability to frame their allocation schemes in a way which best meets local circumstances. That is exactly what the allocation criteria in Clause 157 are designed to achieve.

I tried to explain earlier that the structures of Parts VI and VII of the Bill should, taken together, ensure that the needs of people who are owed a duty under the homelessness legislation are properly addressed, as are the needs of people seeking long-term housing. As I said on an earlier occasion to the noble Baroness, Lady Hollis, I direct her attention—I also direct the attention of the noble Baroness, Lady Hamwee, to this—to Clause 157(2) at page 100 of the Bill which states: The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future". That is an important criterion. It would require an authority to give additional preference to someone who has a need for long-term accommodation on medical or welfare grounds, if that person could not reasonably be expected to secure that accommodation for himself. That should meet most of the anxieties of the noble Baroness.

The noble Baroness said that there should be special provision for the welfare of young people. We propose to make regulations under Clause 152(4) which will allow authorities to accept referrals of certain groups, who may include young people, without applying the provisions of Part VI. We are still reflecting on the consultation on the subject which was undertaken in January this year. With those comments, I hope that the noble Baroness will feel that, on the whole, we are trying to meet the points which are of reasonable concern to her. It would be best if the Bill remained as it is without her amendment because, as I have said, we have catered for the anxieties of the noble Baroness.

Baroness Hamwee

My Lords, I accept that the Government are trying to ensure that there are no holes. Certainly I am prepared to accept that for the purposes of this debate. My concern is to make sure that there are no holes. To that extent, I am going in the same direction as the Government. In accepting in debate that there may be exceptional circumstances to which a local housing authority should have regard, which so far, collectively, we have not been able to define within the Bill, the Government are accepting that there may still be holes to be plugged. That was why I felt it was important to move this amendment notwithstanding the previous debate.

Clause 157 with its provisions for giving reasonable preference is not quite the same as this amendment which states that Part VI is not to apply in the case of applicants who are likely seriously to be prejudiced in this matter.

However, I shall read what the Minister has said, together with the previous debate, and possibly come back to the matter at Third Reading. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 152 [Cases where provisions about allocation do not apply]:

Lord Lucas moved Amendment No. 5: Page 98, line 10, at end insert— ("(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents).").

The noble Lord said: My Lords, in moving the amendment I speak at the same time to Amendments Nos. 6, 111, 121, 175, 176, 177, 208 and 209. I lay the blame for these amendments at the door of the noble Lord, Lord Meston, and the noble Baroness, Lady Hamwee. At Committee stage they taxed us with the necessity of ensuring that the various provisions for the transfer of property on matrimonial breakdown were properly reflected in housing legislation.

We resisted the temptation at Committee stage because we felt that there might be some added complexities to be dealt with. As noble Lords will appreciate from reading through the group of amendments, we were right. On behalf of her noble friend, I trust that the noble Baroness will agree that we have drafted the amendments well. If she feels that we have not, perhaps she will allow me to write to her.

5 p.m.

Baroness Hamwee

My Lords, it is a sensible suggestion. However, if my noble friend Lord Meston has any problems with the drafting, perhaps the noble Lord will write to him. It is sometimes difficult for Members of your Lordships' House to resist the temptation to become deeply involved in the detail of the drafting. Speaking for myself, the obligation is to draw drafting matters about which we have concern to the attention of the Government, heave a sigh of relief, and leave the matter to parliamentary draftsmen to do what they will with the issue. I am grateful to the noble Lord for coming back with this long series of amendments.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 6: Page 98, line 20, at end insert— ("(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents).").

The noble Lord said: My Lords, I have just spoken to Amendment No. 6. In moving the amendment, perhaps I may say that Amendment No. 7 was spoken to by the noble Lord, Lord Mackay, with Amendment No. 2.

On Question, amendment agreed to.

Clause 153 [Allocation only to qualifying persons]:

Lord Lucas moved Amendment No. 7: Page 98, line 34, at end insert— ("(1A) A person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not qualified to be allocated housing accommodation by any authority in England and Wales unless he is of a class prescribed by regulations made by the Secretary of State.").

On Question, amendment agreed to.

The Principal Deputy Chairman of Committees (Lord Tordoff)

My Lords, in putting Amendment No. 8 I have to inform the House that were it to be carried I could not put Amendments Nos. 9 or 10 before your Lordships.

Earl Russell moved Amendment No. 8: Page 98, line 35, leave out subsection (2).

The noble Earl said: My Lords, in moving the amendment, I speak to Amendments Nos. 11, 13, 15 and 20 to 23. All those amendments make a single point. Some are merely consequential, others deal with the identical points.

It may not have been fully appreciated among your Lordships that this is a nationalisation Bill. We no longer expect such Bills from the party on our left, but it seems instead that we have them coming from the party opposite. We do not welcome them any more from one quarter than the other.

Amendment No. 8 deals with Clause 153(2), which states that, The Secretary of State may by regulations prescribe classes of persons who are, or are not, qualifying persons in relation to a local housing authority". In other words, the Secretary of State is to take all the decisions about who goes on the local authority register, on what criteria they are put there, who may not be put on the local authority register, and what criteria of need may not be taken into account in Clause 157(8), on which we have already touched. The Secretary of State is to make all the decisions and the local authority is merely to rubber stamp them.

That creates a paper chase. Secretaries of State, as used to be said of kings, must see with other men's eyes and hear with other men's ears. Therefore it has to be provided in Clause 154(4), that a local authority's housing register, shall contain such information … as the Secretary of State may prescribe by regulations". Where a new need is identified, a massive flow of information has to go to the Secretary of State. Someone in Whitehall will have to read through it and it will take a long time. Then, perhaps too late to meet the need involved, a decision will flow back through a regulation, we shall assemble in the dinner break to debate it, and a new category of need will be taken into account. It is a cumbersome process. It was the kind of process of administration which used to occur in the reign of King Philip II of Spain. It took an extremely long time.

It is not only on these Benches that the issue has caused some dismay. When looking through papers I came across these words, which I shall not attribute. The speaker, a member of the Conservative Party, said: I have spent 15 years in local government, and all of those 15 years as a district councillor I served on the housing committee. During that time I found that gradually the management powers of the council were eroded by central government. This was a big problem for us … Here is another proposal which will mean that councils' hands will be tied and they will be restricted from exercising their best judgment". That is not an opinion confined to one side of the House. If there is any point in having local councils—and we on these Benches believe with great passion that there is—they should be entitled to take account of local circumstances to assess local needs for themselves on the basis of first-hand knowledge. The provisions of Clauses 153 and 157 will prevent that.

One always used to hear a great deal from the Conservatives about Edmund Burke, who saw society as made up of a series of little platoons. In the cohesion of those little platoons he saw a great deal of the cohesion that makes society hang together. When we listen to Conservatives now we hear of nothing but individuals and the state. The little platoons are being disbanded; they are going the way of the Highland regiments. Among those little platoons, the local authorities have had an important place for many centuries. In taking this discretion away from them, the Secretary of State is creating a great deal of work. The measure will produce slow reactions. Despite provisions for yet more regulations which are designed to prevent it, it will produce a great deal of unnecessary uniformity. It will do a great deal of harm. I beg to move.

Baroness Hamwee

My Lords, I support my noble friend. My concerns about the provisions to which he has drawn attention are not as regards the paper chase. They are simpler and more fundamental. Despite the Government's lip service to the need for flexibility, for response to local circumstances, and so on—I have already said that it appears in their consultation paper on allocation—they cannot bear to allow local housing authorities to take decisions for themselves. In the interests of good government I could understand an argument that the clauses should provide for classes of persons who will be qualifying persons, allowing a local housing authority to add other classes. These clauses allow the Secretary of State to prescribe classes of persons who are not qualifying persons.

It seems so harsh and centralised that it almost defies belief. Clause 157(4) states: The Secretary of State may … specify factors which a local housing authority shall not take into account". I agree that a local housing authority should not take into account whether an applicant has red hair. However, I do not believe that any local housing authority whose members submit themselves on a four-yearly or annual basis to election will behave in such a silly fashion. Local housing authorities have an ability to assess qualifications, needs and so on for themselves, in the light of their own circumstances. That has already been alluded to, not only by the noble Baroness, Lady Hollis, in moving an earlier amendment, but also rightly by the noble Baroness, Lady Gardner of Parkes.

Earl Ferrers

My Lords, in moving the amendment, the noble Earl, with characteristic modesty, disapplied almost all the regulation-making powers in Part IV of the Bill. He went on to say that it was a "nationalisation" Bill. I fail to see the connection between the two, but the noble Earl in his wisdom obviously finds one, even if it is not shared by other people. The noble Baroness, Lady Hamwee, said that the provision was harsh and centralised.

There are good reasons for having the Bill as it is. The purpose of the regulation-making powers is twofold. First, as already discussed in our consideration of the government amendments moved by my noble friend Lord Mackay earlier, we propose to use the power to remove the entitlement to social housing from certain classes of people from abroad. We may also use it to confer an entitlement on certain descriptions of people who, we believe, should be entitled to be considered for permanent accommodation by a local authority. We have in mind, for example, giving anyone over 18 who is owed a duty under the homelessness legislation a right to appear on the housing register.

The noble Earl, Lord Russell, thought that the Secretary of State was taking all the decisions on who goes on the register. I remind him that in our January 1996 consultation we made it clear that we would only limit access to the register in respect of certain classes of people from abroad. However, we are minded to give entitlement to appear on the register to certain people who have clear needs—in other words, those who are owed a duty under the homelessness legislation. One might say, "Why do all that by regulation?" The answer is in order to make it flexible. We do not wish to put all possible permutations that might arise into the Bill and set them in concrete. By having orders, we can amend and adjust the provisions from time to time as circumstances change.

Amendment No. 15 deletes subsection (4) from Clause 154. That is the regulation-making power for the Secretary of State to prescribe the content of an authority's housing register. If a person is entitled to see his entry on the housing register, there should be a need to ensure that it contains information which is of use to him.

Clause 157 is exposed to no less than four amendments. Amendment No. 20 deletes subsection (3), thereby removing the regulation-making power under which the Secretary of State may specify further descriptions of people to whom preference is to be given. Since the power is subject to the affirmative resolution procedure—I sense the noble Earl is somewhat fonder of it than he is of the negative procedure—his amendment seems off-beam because the matter will be able to be discussed by Parliament.

Subsection (4) would be lost from the clause under Amendment No. 21. That is the regulation-making power for the Secretary of State to specify the factors which a local housing authority shall not take into account in allocating accommodation. An example would be where an authority sought to give priority to people solely on the basis that they had been born in the area. That seems unfair.

Amendment No. 22 demolishes yet another subsection of Clause 157—subsection (5). That is the regulation-making power for the Secretary of State to prescribe the principles in accordance with which a scheme for the allocations procedure is to be followed. We are minded to use the power to make regulations restricting the involvement of elected members from decisions on individual applications. Amendment No. 23 disposes of subsection (6).

That is all good, swiping draconian stuff. If we take the amendments together, they would leave Part VI open to a kaleidoscope of interpretation and application by local authorities. They could well do things quite differently. If authorities were to be left entirely to their own devices in the field of allocations, I fear that an intolerable situation would develop with inconsistencies and unfairness creeping in all over the place.

I know that secondary legislation is anathema to the noble Earl. However, in an area such as this we must have regulations. I ask him to delve deep into his conscience and realise that if we were to put everything on the face of the Bill, there would be no way of altering it, short of other primary legislation. Knowing the noble Earl's dislike, like mine, of too much primary legislation, I am sure that he will agree that it is better to have it in secondary legislation.

5.15 p.m.

Earl Russell

My Lords, the noble Earl has made the case for my amendment a great deal better than I did. In the course of answering, he entirely mistook its purpose. I am not just arguing about primary versus secondary legislation. My argument is that I do not see why the Secretary of State should have the powers at all. It seems to me an outrage that he should have them. It is a bureaucratic nightmare, a centralisation and the imposition of a remote and uninformed judgment on a local and informed judgment. It is a gross constitutional impropriety.

The Minister said that it would create a kaleidoscope. But the Government have admitted in discussion of Clause 9 of the Asylum and Immigration Bill as well as in this Bill that different regulations may be needed for different areas. The Government admit the need for a kaleidoscope because they admit the variety of local housing circumstances. If there has to be a kaleidoscope, why should it not be judged by those best qualified to do so—those who live in the area and who meet the people there every day. They should do it rather than have it all taken into the hands of Whitehall.

I did not expect the Minister to understand what I meant when I described it as a "nationalisation" Bill. I mean that the Government are turning local authorities into departments of Whitehall. That is not what local authorities are for. Because they are elected at different times and places and because they may be of a different political complexion from the governing party, no matter which party that may be, local authorities are a necessary part of the political variety which makes this a free country. To take that away I regard as a grave error of judgment.

The noble Earl recommended the measures to me on the ground that they were designed to disentitle people from abroad. I know that he has been away and I too am glad to see him back in his place. However, if he had not been away he would not have supposed that that would act as a recommendation to me. Why is it the Government's business to decide? I understand why, once they have set out on that course, they need flexibility. Once they have taken powers that are too detailed for them to have at all, they need regulation-making powers in order to change their minds and further regulation-making powers in order to change their changes of mind. "Greater fleas have little fleas upon their backs to bite 'em" and so on ad infinitum.

Once again, I recommend to the Minister that he study the report of his noble friend Lord Renton on the drafting of legislation. He drew attention to the fact that this over-detailed, over-prescriptive, way of legislating based on a desire to foresee all possible cases—which of course no legislator ever can—necessarily leads to a multiplication of powers. Although it is moved by the pursuit of certainty, it ultimately ends in exactly the opposite.

Above all, I believe what lies behind the Secretary of State's judgment is the utter impatience felt by all executives, and even more badly by those who have been there too long, with any check to their power to do what they like. This Government have shown great impatience with anything that has impeded their will. They have shown impatience with the judges, the European Union, the European Court of Justice, the European Court of Human Rights, the Church, this House, and with local authorities. We are seeing here a part of a very wide constitutional battery. It has occasionally been parodied by governments who have been in office even longer than this Government have.

King Xerxes was once bringing an invading army across a strait and built a bridge of boats to march it across. When a storm came up and blew away his bridge of boats, King Xerxes ordered his soldiers to whip the sea. That is what happens when people have been in power for too long. I wish to ask the opinion of the House.

5.21 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 147.

Division No. 3
CONTENTS
Addington, L.	Kilbracken, L.
Ashley of Stoke, L.	Lester of Herne Hill, L.
Avebury, L.	Lockwood, B.
Beaumont of Whitley, L.	McIntosh of Haringey, L.
Berkeley, L. [Teller.]	McNally, L.
Broadbridge, L.	Methuen, L.
Carlisle, E.	Monkswell, L.
Clinton-Davis, L.	Morris of Castle Morris, L.
Cocks of Hartcliffe, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Plant of Highfield, L.
Dormand of Easington, L.	Redesdale, L.
Dubs, L.	Russell, E. [Teller.]
Falkland, V.	Serota, B.
Farrington of Ribbleton, B.	Shepherd, L.
Fitt, L.	Smith of Gilmorehill, B.
Geraint, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Strabolgi, L.
Gregson, L.	Taveme, L.
Hamwee, B.	Taylor of Blackburn, L.
Harris of Greenwich, L.	Taylor of Gryfe, L.
Haskel, L.	Thomson of Monifieth, L.
Hollis of Heigham, B.	Tope, L.
Holme of Cheltenham, L.	Tordoff, L.
Hughes, L.	Turner of Camden, B.
Jeger, B.	Wallace of Saltaire, L.
Jenkins of Hillhead, L.	White, B.
Jenkins of Putney, L.	Williams of Elvel, L.
Kennet, L.	Winchilsea and Nottingham, E.
NOT-CONTENTS
Aberdare, L.	Butterworth, L.
Addison, V.	Campbell of Alloway, L.
Ailsa, M.	Campbell of Croy, L.
Aldington, L.	Carnegy of Lour, B.
Alexander of Tunis, E.	Carnock, L.
Allenby of Megiddo, V.	Chalker of Wallasey, B.
Ashboume, L.	Chelmsford, V.
Astor of Hever, L.	Chesham, L. [Teller]
Balfour, E.	Clanwilliam, E.
Belhaven and Stenton, L.	Clark of Kempston, L.
Biddulph, L.	Clitheroe, L.
Blaker, L.	Cochrane of Cults, L.
Blatch, B.	Courtown, E.
Blyth, L.	Cox, B.
Boardman, L.	Craigavon, V.
Bowness, L.	Cranborne, V. [Lord Privy Seal.]
Boyd-Carpenter, L.	Crathorne, L.
Brabazon of Tara, L.	Cuckney, L.
Bridgeman, V.	Cumberlege, B.
Brigstocke, B.	Dean of Harptree, L.
Brougham and Vaux, L.	Denham, L.
Bruntisfield, L.	Digby, L.
Burnham, L.	Dixon-Smith, L.

Downshire, M.	Moyne, L.
Eccles of Moulton, B.	Munster, E.
Ellenborough, L.	Murton of Lindisfarne, L.
Elles, B.	Nelson, E.
Elliott of Morpeth, L.	Newall, L.
Elton, L.	Norfolk, D.
Erroll, E.	Norrie, L.
Feldman, L.	Northesk, E.
Ferrers, E.	O'Cathain, B.
Flather, B.	Oppenheim-Barnes, B.
Fraser of Carmyllie, L.	Orr-Ewing, L.
Gainsborough, E.	Oxfuird, V.
Gardner of Parkes, B.	Palmer, L.
Goschen, V.	Park of Monmouth, B.
Gray of Contin, L.	Pearson of Rannoch, L.
Hailsham of Saint Marylebone, L.	Pender, L.
Halsbury, E.	Pilkington of Oxenford, L.
Hamilton of Dalzell, L.	Plummer of St. Marylebone, L
Harding of Petherton, L.	Rankeillour, L.
Harmsworth, L.	Rawlings, B.
Hayhoe, L.	Rees, L.
Henley, L.	Rennell, L.
	Renton L
Hogg, B.	Renwick, L.
Holderness, L.	Romney, E.
Hooper, B.	St Davids V.
Howe, E.	Saltoun of Abernethy, Ly.
Hylton-Foster, B.	Seccombe, B.
Inglewood, L.	Sharples, B
Kimball, L.	Shaw of Northstead, L.
Kintore, E.	Skelmersdale L
Knutsford, V.	Soulsby of Swaffham Prior, L.
Lane of Horsell, L.	Strange, B
Lauderdale, E.	Strathclyde, L. [Teller.]
Leigh, L.	Sudeley, L.
Lindsay, E.	Swansea, L.
Liverpool, E.	Swinton, E.
Long, V.	Teviot, L.
Lucas, L.	Thomas of Gwydir, L.
Lucas of Chilworth, L.	Tollemache, L.
McConnell, L.	Torrington, V.
Mackay of Ardbrecknish, L.	Trumpington, B.
Mackay of Drumadoon, L.	Vivian, L.
Macleod of Borve, B.	Wade of Chorlton, L.
Vlarlesford, L.	Walker of Worcester, L.
Masham of Ilton, B.	Waterford, M.
Massereene and Ferrard, V.	Wharton, B.
Mersey, V.	Whitelaw, V.
Miller of Hendon, B.	Wilcox, B.
Monk Bretton, L.	Wynford, L.
Mottistone, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.32 p.m.

Lord Mackay of Ardbrecknish moved Amendments Nos. 9 and 10: Page 98, line 35, after ("prescribe") insert ("other"). Page 98, line 36, leave out ("a") and insert ("local housing authorities generally or any particular").

The noble Lord said: My Lords, I have spoken to Amendments Nos. 9 and 10 along with Amendment No. 2. I beg to move the amendments en bloc.

On Question, amendments agreed to.

The Deputy Speaker

My Lords, in calling Amendment No. 11 I have to advise the House that were that to be agreed to I would not be able to call Amendment No. 12.

[Amendment No. 11 not moved.]

Earl Ferrers moved Amendment No. 12: Page 98, line 38, leave out ("any such regulations") and insert ("subsection (1A) and any regulations under subsection (2)").

The noble Earl said: My Lords, I spoke to Amendment No. 12 along with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, in calling Amendment No. 13 I have to advise the House that were that to be agreed to I would not be able to call Amendment No. 14.

[Amendment No. 13 not moved.]

Earl Ferrers moved Amendment No. 14: Page 98, line 42, after ("by") insert ("subsection (1A) or").

The noble Earl said: I spoke to Amendment No. 14 with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Clause 154 [The housing register]:

[Amendment No. 15 not moved.]

Clause 155 [Operation of housing register]:

Earl Ferrers moved Amendment No. 16: Page 99, leave out line 18 and insert— ("( ) When a local housing authority put a person on their housing register (on his application or otherwise), they shall notify him that they have done so.").

The noble Earl said: My Lords, in moving Amendment No. 16 I shall speak at the same time to Amendments Nos. 17 and 18. These amendments establish a formal review procedure for requesting a review of a decision to refuse to put somebody's name on a housing register or to remove it.

We have always been concerned to ensure that the benefits of a review procedure of this kind should somehow be made. The need for a formal review procedure is important where access to the housing register is concerned as this, in effect, controls access to long-term social housing. Your Lordships will no doubt be aware that many local authorities impose restrictions on access to their housing registers, for example, by reason of age or local connection. They will continue to be able to do so under the provisions of this part, subject to regulations made by the Secretary of State. The House has already discussed at some length the possible content of these regulations.

When the question of a formal review procedure was raised during Committee stage by the noble Baroness, Lady Hamwee, my noble friend Lord Mackay of Ardbrecknish said that he would consider bringing forward alternative proposals at a later stage, and that is what these amendments are.

Amendment No. 16 requires authorities to notify applicants that they have been placed on the housing register. Amendment No. 17 requires an authority to notify the applicant of an adverse decision, and of his right to request a review. Amendment No. 18 deals with the review process itself and the procedure for notifying applicants of a decision on a review. It enables the Secretary of State to make regulations about the form that the review process should take.

I hope the noble Baroness will not mind, even if her noble friend, Lord Russell, minds, that the Secretary of State will be able to make regulations to this. I do not think the noble Baroness will mind because we have tried to meet the points about which she was concerned, and we have brought these amendments forward to do just that. I beg to move.

Baroness Hamwee

My Lords, I welcome these amendments. With regard to the regulation-making powers, I retain a certain cynicism about regulation-making powers in general. There are only so many times in an afternoon when one can make the point. I accept that these things may need to be fleshed out.

I should like to ask the Minister a question as regards Amendment No. 18 which allows for provision, by regulations, in the new subclause (2), requiring the decision on review to be made by a person of appropriate seniority …". Are the Government intending, by regulation, specifically to include or exclude members? Are the Government anticipating that the review will be made by a senior officer, or is it possible that members may be involved? I ask the point not in order to advocate the involvement of members—there are arguments as to whether or not that may be a good thing—but because I am genuinely interested in what the Government are proposing.

Lord Monkswell

My Lords, I apologise to the noble Earl for rising again. I welcome the amendment generally, but ask another question. Subsection (6) of Amendment No. 17, which is repeated as subsection (6) of Amendment No. 18, effectively says that: Notice required to be given to a person under this section shall be given in writing … which, normally, I would submit, would be expected to mean that a letter would be posted to the applicant advising him of the situation. Then it goes on to say: and, if not received by him, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him. We need to appreciate, when considering this subsection, the actual situation in housing offices. Some of them are very busy indeed; some of them deal with an enormous number of inquiries by tenants and applicants for housing. One of the risks associated with this particular subsection is that it may encourage applicants who fall into this category to keep going along to their local housing office to inquire whether the relevant notices come forward. It also would imply that a local authority would not have to post the letter. It just says "given in writing". Then they have a fall-back position of saying that as long as there is a copy in the office available for collection that appears to be all right. I should have thought that that was not a terribly satisfactory way for a public service to go about its business.

Having said that, there is a genuine difficulty, if one considers those people who may apply to go on the local housing register and who are literally homeless and living on the street. Obviously, people in that kind of category will not be in a position, generally speaking, to receive mail from the local authority. I wonder, first, whether we could have some explanation of the Government's interpretation of how they would envisage the subsection working and whether the reference to notices being made available at the authority's office is in fact constructed to ensure that homeless and roofless people living on the streets have some mechanism for being in contact and receiving those written notifications. If that is the case, I wonder whether it might be useful to identify separately that particular category of persons. It may be that that is the Government's interpretation of that subsection anyway, but it would be useful for the House to have some explanation.

Lord Boyd-Carpenter

My Lords, there is an interesting and somewhat unusual provision in Amendment No. 18, which states that: Provision may be made by regulations … requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision". I do not know whether anywhere else in the Bill there is a definition of "appropriate seniority" and I do not know—it is my ignorance—whether a similar provision is included in other legislation. The expression "appropriate seniority" is one on which there could be differing views. It would be helpful if my noble friend could explain exactly what the Government have in mind there and what "appropriate seniority" in this case means.

Earl Ferrers

My Lords, perhaps I may deal at the same time with the questions of my noble friend Lord Boyd-Carpenter and the noble Baroness, Lady Hamwee. There are probably hundreds of thousands of decisions on housing made throughout the country. They are quite often made by relatively junior people and it is possible that there may be mistakes. The idea behind the Bill is that when a person appeals, it will go to a more senior person than the first one. It will not go to the person who made the original decision but to a more senior person. Some authorities may wish that the reviews go to one person and another authority may wish them to go to another. It is even possible, as the noble Baroness asked, that they go to members. They could be involved. The point is that they should go to a person who is above the rank of the person who originally took the decision. It will be up to the local authority to decide how best to do that.

The noble Lord, Lord Monkswell, is worried about the notice being required to be given to a person. It shall be, given in writing and, if not received by him, shall be treated as having been given". I do not believe that there is anything sinister in that. Sometimes people move away. Sometimes a person can be given a letter and, if he is in a particularly fractious frame of mind, he throws it back into your face. Sometimes he might even tear it up and say, "I'm not going to take any notice of that." It is not good enough to say that a person has to have read it because a person cannot be forced to read it. If one has gone through every reasonable method of getting in touch with that person to tell him what is being done and he is either not available or refuses it, then it is lodged with the local authority and one says, "We've done our best. This is the fact, which he can come and see whenever he wants." That is the reason for having that passage in the Bill. We do not feel that there is anything sinister in it.

Lord Boyd-Carpenter

My Lords, can my noble friend say whether there is a similar provision in any other legislation, or is this one unique?

Earl Ferrers

My Lords, I beg my noble friend's pardon. I forgot to answer that question. If I were to have answered it, I should have had to say I do not know. I shall find out whether or not it is unique.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 17: After Clause 155, insert the following new clause—

NOTIFICATION OF ADVERSE DECISION AND RIGHT TO REVIEW

(".—(1) If a local housing authority decide—

1. (a) not to put a person on their housing register who has applied to be put on, or
2. (b) to remove a person from their housing register otherwise than at his request,

they shall notify him of their decision and of the reasons for it. (2) The notice shall also inform him of his right to request a review of the decision and of the time within which such a request must be made. (3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision and reasons, or such longer period as the authority may in writing allow. (4) There is no right to request a review of the decision reached on an earlier review. (5) On a request being duly made to them, the authority shall review their decision. (6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him.").

The noble Earl said: My Lords, I spoke to Amendments Nos. 17 and 18 with Amendment No. 16. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 18: After Clause 155. insert the following new clause—

PROCEDURE. ON A REVIEW

(".—(I) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section (Notification of adverse decision and right to review). Nothing in the following provisions affects the generality of this power. (2) Provision may be made by regulations—

1. (a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
2. (b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

(3) The authority shall notify the person concerned of the decision on the review. (4) If the decision is to confirm the original decision, they shall also notify him of the reasons for the decision. (5) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision. (6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him.").

On Question, amendment agreed to.

5.45 p.m.

Clause 157 [Allocation in accordance with allocation scheme]:

Lord Swinfen moved Amendment No. 19: Page 100, line 11, at end insert ("including disabled people occupying inaccessible or unsuitable housing").

The noble Lord said: My Lords, in moving this amendment I shall speak at the same time to Amendment No. 70. Grouped with those two amendments is Amendment No. 73, which I tabled to ensure that the Government themselves tabled an amendment, as they said in Committee they would. Indeed, they have done so. It is Amendment No. 71 which, strangely, is grouped with Amendment No. 42. Even more oddly, my noble friend Lord Mottistone tabled an amendment to that amendment (Amendment No. 71), which is Amendment No. 72, and that amendment is grouped with Amendment No. 56. So there is bit of a mare's nest. However, I propose to deal now with only Amendments Nos. 19 and 70, as I said. I shall not move Amendment No. 73 in due course. No doubt some government department responsible for grouping amendments will make certain that my noble friend Lord Mottistone has word that his Amendment No. 72 (his amendment to my noble friend's Amendment No. 71) is grouped with Amendment No. 42.

Amendment No. 19 is designed to ensure that the allocation criteria for priority in social housing includes disabled people living in inaccessible or unsuitable housing. Clause 157 refers to the priorities for local authorities when allocating permanent social housing. There are serious concerns that disabled people living in inaccessible or unsuitable housing will receive no higher priority under this system than a disabled person living in accessible accommodation who wishes to move for other reasons.

There must be some mechanism for making a distinction between a person who requires settled accommodation and who is currently in reasonable accommodation and a person who requires settled accommodation who is currently in completely unsuitable accommodation. This amendment seeks to ensure that the first category—category (a) as listed in the clause—is clearly applied not only to those living in insanitary or overcrowded or … unsatisfactory housing conditions", but also to disabled people whose housing is unsatisfactory, not because of its condition or state of repair but due to its inaccessibility or unsuitability for the needs of that disabled person.

If reasonable preference is given to non-disabled people for a variety of reasons, including living in unsatisfactory housing conditions, the same category of preference must be open to disabled people because they are living in inaccessible housing.

At Committee stage, the Minister placed considerable emphasis on category (e), which refers to reasonable preference being given to: someone with a particular need for settled accommodation".

However, the Minister stated that the words "unsatisfactory housing conditions" in category (a) would cover a disabled person who occupied inaccessible or unsuitable housing. He did not, however, state that the guidance would specifically point that out to local authorities. Rather, the Minister said that guidance would draw the attention of local authorities to their responsibilities towards people with physical disabilities.

It remains a serious concern that the guidance may simply make reference to general responsibilities rather than pointing out the wider interpretation of category (a), which the Minister gave. It is still important therefore that the issue is clarified on the face of the Bill. That will ensure that disabled people and local authorities have a clear view as to how category (a) applies to those people living in inaccessible accommodation. It will further ensure that there are no disputes or legal cases surrounding the interpretation of general statements within guidance. If the Government are not prepared to add the information to primary legislation, a commitment that local authorities should include inaccessible or unsuitable housing for disabled people within category (a) should be clearly stated in guidance.

The purpose of Amendment No. 70 is to ensure that when the local authority discharges its duty towards homeless people in priority need by satisfying itself that other suitable accommodation is available that accommodation meets the needs of the household, including any disabled members of that household. This section of the legislation allows local authorities to discharge their duty towards homeless people in priority need by satisfying themselves that suitable accommodation is available in the district. It is important that that accommodation meets the needs of the household and, in particular, the needs of any disabled members of the household.

In practice, local authorities could satisfy themselves that suitable accommodation is available by being aware that local letting agencies have vacant properties or that local private landlords have vacancies. Their only duty is to provide the applicant with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure such accommodation. Without regard to the needs of the household, particularly those of the disabled member, there could be considerable difficulties.

I am advised that RADAR is aware of a case which effectively illustrates the problems of local authorities putting homeless disabled people into completely inappropriate accommodation. A London borough agreed in 1994 that a young disabled woman was unintentionally homeless and in priority need. As it could find no suitable accommodation within its own housing stock, it gave her one offer of temporary housing association property which was completely inaccessible to her. Due to her disability, the young woman had extreme difficulty using stairs and required warm accommodation. The accommodation she was offered was on the third floor with no lift and no heating. It was also extremely expensive, requiring not only housing benefit, but also taking a considerable contribution from her small medical pension.

As she was literally homeless, with nowhere to go, the young woman accepted the offer of accommodation; it was the only offer she had. Two years later the young woman is still living in that third floor flat. She requires daily support from social services, including doing all her shopping. She cannot get out of the flat independently and her condition has worsened. The local authority agrees that she requires wheelchair accessible accommodation but has made no offers of ground floor accommodation.

During the Committee stage my noble friend the Minister stated that the homeless code of guidance already referred to the need to ensure that any accommodation provided meets the needs of disabled persons where necessary and that that advice would be repeated in the revised code of guidance. However, there appears to be no specific reference within the current code to accommodation specifically meeting the needs of disabled people. The relevant section of the code states in paragraph 12.4: The sort of accommodation a council can secure will depend on the circumstances of the particular household. Do they need special care and support from the health services or social services? What is their own preference? How will they pay for it?

Local authorities must also have regard to other duties and legislation concerning slum clearance, overcrowding and houses in multiple occupation. That section does not refer to the need to ensure that any accommodation provided meets the needs of disabled people. It does not address the issues referred to in the amendment. There is no specific mention of disabled people or the requirement for accommodation to be accessible. In practice, this rather vague guidance does not have the effect of ensuring that disabled people are offered accessible accommodation which is suitable to their needs, as illustrated by the case I quoted. The result is that disabled people rely on case law definitions of suitability and contemplate legal action. That is not a good solution to the problem, particularly as people are often literally roofless with nowhere else to go and do not have the time for lengthy arguments about case law or to look at legal action.

The other suggestion made during Committee stage was that the Secretary of State should specify by order other matters which could be taken into account in determining whether or not accommodation is suitable. Surely it would be preferable to decide at this stage whether the criteria set out in the amendment should be taken into account when determining whether or not accommodation is suitable. They are the basic criteria which determine whether an individual can live in a property and are best placed on the face of the Bill rather than being left to order-making powers at a later stage. I beg to move.

Baroness Darcy (de Knayth)

My Lords, I support the amendment. Indeed, I wanted to add my name to it, but I was too late to do so. The noble Lord, Lord Swinfen, stated the case clearly and convincingly.

It is important to include Amendment No. 19 on the face of the Bill. Inaccessible or unsuitable accommodation may have a serious spinoff or impact on disabled people and can limit their independence. Also, it can affect not only one's physical health and wellbeing, but also one's psychological and social welfare. In some instances it may retard and even prevent one's eventual rehabilitation. A case was instanced by the noble Lord, Lord Swinfen.

It would also be helpful to include Amendment No. 70 on the face of the Bill. I hope that the Minister—I am delighted to see him back at his post; I believe he has been back for a couple of days, but this is the first time I have seen him—will give us an encouraging reply.

Earl Russell

My Lords, the Minister has only himself to blame for facing this amendment. These are precisely the problems that arise when the Secretary of State takes the power to specify all the criteria for allocation of local authority housing. It means that as soon as he forgets to put anything in—as he has here—he will face well-founded, heartfelt and well-informed arguments suggesting that he do something about it. Inevitably, we will have a politicisation of the debate on the criteria for need. That debate has begun here and I cannot think of any more powerful ground on which it could have begun.

I particularly welcome Amendment No. 73. Simply to say that other suitable accommodation is available may be a temptation to a cash-strapped local authority which is very near its capping limit. And, as in the case mentioned by the noble Lord, Lord Swinfen, other accommodation which is suitable to anyone else may be completely unsuitable for somebody who lacks the mobility to get there. I found the example given by the noble Lord extremely moving. Normally when one thinks of the homeless one thinks that the one asset that they enjoy is their mobility; their ability to come and go and perhaps sleep in a different doorway because the wind is warmer in one than another. But if one lacks mobility, one cannot do that. It makes the pain of homelessness far greater than it would be under any other circumstances I can think of. These are important amendments. If the Secretary of State intends to keep control of all the criteria of allocation, he must find some way of accepting them.

6 p.m.

Baroness Hamwee

My Lords, I, too, support this amendment. The first amendment goes to the provision in Clause 157, which refers to reasonable preference being given to people living in, "unsatisfactory housing conditions". The reason why I particularly support the amendment is that I am not yet persuaded that "unsatisfactory" refers to anything more than the housing conditions. In particular, I am not persuaded that it can be construed to mean unsatisfactory for a particular person even if it is satisfactory for another.

Earl Ferrers

My Lords, I thank my noble friend Lady Darcy (de Knayth) for what she has said. She said that she hoped that I would give a sympathetic reply. I hope to do just that and that it will satisfy her. I also hope that it will satisfy the noble Earl, Lord Russell, and the noble Baroness, Lady Hamwee, too. The noble Earl is in a combative mood today. First, he said that we should not have any regulations and he then moved a whole host of amendments to take out all the regulations. Secondly, he says that if one is to have regulations, this particular regulation has not been included. Thirdly, he then explained how Xerxes created a bridge of boats and when the wind and the waves got up, the boats were upset and the men fell in the water and they were ordered to whip the sea. As regards that amendment, I wonder whether Xerxes was more successful in whipping the sea than the noble Earl was in whipping his own troops into the Division Lobby.

The fact is that one has to have regulations. There cannot be a completely different panoply of housing rules throughout the country so that Somerset will be different from Lancashire and Yorkshire different from Birmingham. There has to be some kind of regulation running all the way through, particularly as the Government provide a very great part of the funding.

What concerns me here is that the noble Earl blames the Government for not including various items whereas I am much more concerned that we see that the points are covered. In my view—and this is where I hope to be able to satisfy the noble Baroness, Lady Darcy (de Knayth) and, with a generous attitude from the noble Earl, persuade him also—these matters are covered.

Amendments Nos. 19 and 70, to which my noble friend has spoken, both relate to the particular needs of disabled people. Amendment No. 70 would insert into Clause 185 a requirement that other suitable accommodation, which is available for occupation, must meet the needs of the household in terms of affordability and size and it must be accessible to disabled members of the household.

Clause 185 in fact provides that the accommodation must be suitable for the needs of the applicant and his household. Where the household includes a person with physical disabilities, it must be suitable for his needs as well. I draw the attention of my noble friend Lord Swinfen to the terms of government Amendment No. 71 to Clause 185. This will provide that the advice and assistance must be commensurate with the personal circumstances of the applicant. I can assure my noble friend Lord Swinfen that this matter will be fully covered also in the forthcoming revised guidance.

So I believe that the concerns that my noble friend has expressed—I can well understand them and he is entirely justified to be concerned—have been met in the Bill as it is. I admit to just a twinge of regret that the amendment which my noble friend originally put down did not appear on the face of the Bill. Originally, when it appeared in the list of amendments, the authorities would have been required to meet, "the needs of any desirable members of the household". Of course, that was a misprint, but I wondered how "desirability" would be defined to the satisfaction of all parties. One also wondered what would happen to the undesirable members. If they were rendered homeless, just think what would happen then!

My noble friend has seen the folly of his ways—or at least his drafting and, possibly, even his handwriting. Even if he had written the amendment properly, which he has now done, it is still not necessary. Amendment No. 19 would insert into Clause 157 a requirement that disabled people who are occupying unsuitable or inaccessible housing should be among those to whom reasonable preference is given in allocating housing accommodation.

I hesitate to tell my noble friend, because I admire the work that he does in this direction, but this is an unnecessary amendment. Clause 157(2)(a) specifies that reasonable preference is to be given to those occupying "unsatisfactory housing conditions". In our view that description must, and does, embrace, disabled people occupying inaccessible or unsuitable housing". Under Clause 157(3)(a) and (b) the Secretary of State can specify by regulations further descriptions of people to whom preference is to be given and he is enabled to amend existing descriptions.

The allocations provisions of Clause 157 grew out of Section 22 of the Housing Act 1985. We are not aware that the omission of a specific reference to disabled people has in the past caused any problems, but if it did, we have the power to put matters right in the regulations should that be found to be the case. I am grateful to my noble friend Lord Swinfen for the tragic example which he gave. I shall certainly look at the provisions to see whether that kind of case will be likely to be reflected in future.

There is also the guidance. That will deal not only with homelessness and housing advice, but also with allocations. I shall look carefully at what my noble friend said about disabled people in the context of allocations. We shall try to incorporate any salient points in the guidance. In drawing up guidance on the applications provisions of Clause 157, we shall cover matters of physical accessibility.

My noble friend was concerned about the needs of the disabled not being covered by guidance, but I can assure him that we shall expand the matters on guidance. The present code was written before the National Health Service and Community Care Act 1990 was implemented so there is room for improvement there. The noble Earl, Lord Russell, suggested that what was suitable for one person was not necessarily suitable for another. That may well be the case. The test of suitability is applied on a case-by-case basis. It should take account of the applicant's particular and peculiar needs. That is the reason why it is important that each person should be considered individually. The same applies to the noble Baroness, Lady Hamwee, who was also concerned about that matter.

I hope that I have been able to persuade your Lordships that, despite the quite correct concerns of your Lordships about making certain that disabled people are properly looked after, that is the case in the Bill as it stands. I hope that that will prove satisfactory to my noble friend Lord Swinfen; to the noble Baroness, Lady Darcy (de Knayth) and to the two noble Lords on the Liberal Democrat Benches, even if one is a lady.I hope that they will both consider that their cases and concerns are met.

Lord Monkswell

My Lords, before the noble Earl sits down, may I raise one issue with him which he has not touched on? I did not intervene earlier because the case for these amendments had been made so eloquently and the initial response from the Minister suggested that all the points that had been raised by the amendments would be accommodated.

But the noble Earl has not touched on one particular aspect of the amendments which is quite important. Amendment No. 70 refers to meeting, the needs of the household in terms of affordability". Those of us who are keenly interested in this Bill are very indebted to the noble Earl for the letter that he sent us today in which he makes reference to affordability raised by the noble Earl, Lord Russell, at Committee stage. In that letter the noble Earl, Lord Ferrers, identified the fact that 80 per cent. of applicants for assistance receive housing benefit and that the normal limits of affordability regarding housing benefit would therefore apply. However, we are left with 20 per cent. who would not come under the general aegis of housing benefit, and the noble Earl has not said anything about the suitability of accommodation in terms of its affordability.

We must bear in mind that, because of the problems of negative equity and repossessions, significant numbers of people are now becoming homeless and are seeking support and help with their housing who would not normally be on council house waiting lists. Therefore, can the noble Earl say something about affordability in the context of the suitability of the accommodation? I hope that the Government will be able to give us some assurance on that matter. If not, I think that the text of Amendment No. 70, to which the noble Lord, Lord Swinfen, spoke so eloquently should perhaps be pressed.

Earl Ferrers

My Lords, the answer to the noble Lord is relatively simple in that a house cannot be suitable for a person if he cannot afford to live in it. Therefore, "suitability" covers "affordability". The Ritz might be a suitable place in which to live, but if a person cannot afford that it would be quite inappropriate to send him to the Ritz. As I have said, I think that "suitability" covers "affordability".

Lord Swinfen

My Lords, before my noble friend finally sits down, I wonder whether he could clarify the phrase "unsatisfactory housing conditions". I got the impression that my noble friend was referring to more than just the physical structure of a building and its cleanliness, heating and draught-proofing. I have always understood that "unsatisfactory housing conditions" means poor quality housing and housing that should be condemned. I was referring to the "usability" of a house for a disabled person. It would be useful if my noble friend could clarify that point for me.

Earl Ferrers

My Lords, the phrase "poor quality housing" must cover a number of things and must relate to the person concerned. That phrase would apply if the rain was coming in and if the sewers stank. A property would also be "poor quality housing" if it comprised one bedroom and a bathroom but the occupant was a single mother with five children. That would be considered "unsuitable". Equally, a property would be unsuitable if it was at the top of a block of flats without a lift and was offered to someone in a wheelchair. That would obviously be improper. The phrase covers more than just the physical condition of the housing, but that is an important element of it.

Lord Swinfen

My Lords, I thank my noble friend for going just a little further on that point, which needed clarification. On the whole, my noble friend has answered all my concerns, but I should like to read what he has said and to reserve my position as to whether to return to this on Third Reading. However, given what has been said I doubt whether that will be necessary.

Referring to the first version of the amendment, I know that this was not due to my handwriting (because the amendment was handed in in typewritten form) but I like to think that everyone is "desirable" to someone. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 23 not moved.]

6.15 p.m.

Schedule 14 [Allocation of housing accommodation: consequential amendments]:

Lord Mackay of Ardbrecknish moved Amendment No. 24: Page 179, line 34, at end insert—

("Asylum and Immigration Act 1996 (c.)

.—(I) Section 9 of the Asylum and Immigration Act 1996 (entitlement to housing accommodation and assistance) is amended as follows. (2) In subsection (1) (entitlement to housing accommodation)—

1. (a) for "housing authority" substitute "local housing authority within the meaning of the Housing Act 1985", and
2. (b) for "the accommodation Part" substitute "Part H of that Act".

(3) After subsection (4) insert— (5) This section does not apply in relation to any allocation of housing accommodation to which Part VI of the Housing Act 1996 (allocation of housing accommodation) applies.").

The noble Lord said: My Lords, in moving Amendment No. 24, I should like to speak also to Amendments Nos. 251, 253, 254, 255 and 261.

As I have already said on a number of occasions, the Government are taking steps to ensure that persons who are subject to immigration control and have been given leave to remain on the basis that they will not have recourse to public funds do not have access to local authority housing.

The Government's wider policy aim of excluding such persons from entitlement to any tenancy of, or licence to occupy, council accommodation is achieved by the provisions of Clause 9(1) of the Asylum and Immigration Bill, which has been considered thoroughly both in another place and by your Lordships.

It is important that that provision should continue to apply when the Housing Bill comes into force. The purpose of this group of amendments is to bring that about. However, there would be one exception to the exclusion from entitlement to local authority accommodation of persons subject to immigration control with no recourse to public funds.

Those noble Lords who attended the House during consideration of the Asylum and Immigration Bill at Report stage will recall that Clause 9 of that Bill was amended at the request of a number of noble Lords—including some of my noble friends, but more particularly the noble Earl, Lord Russell—to enable provision to be made by order to allow local housing authorities to lease accommodation to a college or university for sub-letting to its overseas students. Subject to the accommodation being surplus to the authority's general housing needs, such leasing would be allowed regardless of whether the students being accommodated were, or were not, persons entitled to be allocated a council tenancy.

The amendments would ensure that the broader provision on exclusions in Clause 9(1) of the Asylum and Immigration Bill continues to apply in England and Wales. This is important since the housing register is not the only route by which a housing authority may make its accommodation available.

Where an authority has hard-to-let accommodation which is not desired by those on its register it may consider making this available en bloc to other organisations seeking modest accommodation. This could include organisations in the voluntary sector looking for accommodation for persons who have no claim to public housing.

The amendments would also ensure that the "leasing" provision, if I may call it that, remains in force, allowing local housing authorities to continue to lease to colleges and universities accommodation which is surplus to their requirements.

The amendments will ensure that persons subject to immigration control who are in this country on the understanding that they will not have recourse to public funds do not have access to publicly subsidised local authority housing. At the same time, they will allow an order to be made enabling housing authorities to lease surplus accommodation to colleges and universities which want to provide affordable accommodation for their overseas students. From our previous debates, I am sure that your Lordships will welcome the amendments. I beg to move.

Earl Russell

My Lords, I thank the Minister warmly for this leasing concession to universities, which he originally announced when we were considering the Asylum and Immigration Bill and which he has now carried through in this Bill. I shall not say any more about the rest—and I am sure that the noble Lord is far too experienced to take that silence for consent.

On Question, amendment agreed to.

Clause 164 [Index of defined expressions: Part VI]:

Lord Lucas moved Amendment No. 25: Page 102, line 13, after ("tenancy") insert ("and introductory tenant").

The noble Lord said: My Lords, in moving Amendment No. 25, I should like to speak also to Amendments Nos. 26, 181, 183, 184, 256 and 257.

These amendments tidy up the definition of an "introductory tenancy" and a "secure tenancy" used in Parts V and VI of the Bill and included in the general definitions in Clause 211. They will ensure that, in line with the Housing Act 1985, where a tenant has been granted a licence to occupy a local authority house or flat, rather than a tenancy, the provisions will apply to the licence as if it were a tenancy. The amendments are for the avoidance of doubt and I commend them to the House. I beg to move.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 26: Page 102, line 18, after ("tenancy") insert ("and secure tenant").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 165 [Homelessness and threatened homelessness]:

Earl Ferrers moved Amendment No. 27: Page 102, line 22, leave out ("there is") and insert ("he has"). The noble Earl said: My Lords, I beg to move Amendment No. 27 and, if I may, I should like to speak to Amendments Nos. 28, 29, 30, 32 and 34. All these amendments are small but significant, particularly as they relate to Clauses 165 and 166. The need for them has to some extent been identified by Shelter, to whom we are most grateful. The amendments are necessary because the current drafting of Clauses 165 and 166 has an effect which was not intended. I hope, therefore, that your Lordships will welcome these amendments generally. The present homelessness provisions in Part III of the Housing Act 1985 deal separately with two different issues concerning whether accommodation is available to an applicant. The first condition is whether the applicant is homeless because he does not have accommodation available to him. The second condition relates to the duty that he is owed once unintentional homelessness and priority need has been established. That duty is to secure that accommodation is available for the applicant and his household. Broadly speaking, the drafting restates the provisions in Part III regarding the assessment of whether someone is homeless and the question of a duty to secure that accommodation is available for an applicant.

The current drafting of subsection (1) of Clause 166 means that subsections (3) and (4) of that clause, together with all the provisions of Clause 167, which broadly deal with the question of whether it would be reasonable for somebody to continue to occupy their present accommodation, would apply also to Part VII as a whole, which includes making available fresh accommodation. This is not what was intended. It is not needed and it would upset the structure of the legislation, which follows that of the 1985 Act and the case law which is based upon it. Instead, we are seeking to apply the definitions only to the assessment of whether a person is homeless. These amendments therefore combine to rectify the drafting of Clauses 165 and 166 and in short put the situation back as it was under Section 58 of the 1985 Act. I beg to move.

Baroness Hollis of Heigham

My Lords, I should like to speak to Amendment No. 31, which is in the group of amendments referred to by the noble Earl, Lord Ferrers. This amendment stands in my name and that of the noble Baroness, Lady Hamwee. Perhaps I should specify what is meant by "family member". This Bill reaffirms much of the old Section 75 of the 1985 Housing Act, that where an authority has a homeless applicant accommodation should be suitable for him and his family or any other person who might reasonably be expected to reside there. In the Government's amendment, to which Amendment No. 31 is an amendment, the Government have changed the wording to, any other person who might reasonably be expected to reside with him as a member of his family. We cannot believe that is an oversight: it must be deliberate. That would therefore exclude all those who are not considered members of his family, even though they naturally and normally reside with the applicant: for example, a carer. If somebody was severely disabled—the importance of this was confirmed by the recent direct payments Act which was recently guided through your Lordships' House—the legislation expressly forbids any resident family member from being employed as a carer. Therefore, any paid live-in carer must expressly not be a member of the family. If you therefore seek accommodation with sufficient sleeping accommodation for that carer, it will be ruled out for consideration under the Government's phraseology. It would also, I believe, possibly apply to a same-sex partner, whether family member or not.

The court rulings seem to conflict on this issue. This amendment, therefore, would allow the authorities to decide who might reasonably be expected to reside with the applicant, be they a family member or not, which would be done on the individual circumstances of the case. No local authority would be exploited by this amendment, as the local authority would decide and not the applicant himself or herself. Particularly in those two situations, it seems that people who at the moment under the 1985 Act would have a right to be considered—carers and same-sex partners—would be excluded by the Government's amendment as it currently stands from acquiring accommodation which is suitable and large enough for them all. I beg to move.

Earl Ferrers

My Lords, I always long to be helpful to the noble Baroness and it would be so encouraging if I could be helpful to her. Indeed, it would be a surprise and a delight to the noble Baroness too, but she does sometimes make life terribly difficult.

When speaking to the earlier Amendment No. 30, and others, I explained that it was our intention to rectify the drafting in Clauses 165 and 166 and to return the situation to what it was under Section 58 of the 1985 Act. Therefore, we would not have expected the amendment of the noble Baroness to be necessary. However, on looking at the matter further it became apparent that in drafting the provisions which relate to other persons who might reasonably be expected to reside with the applicant as a member of his family we have in fact cut out the provisions for professional carers who may be required to live in. This was not our intention, and I am delighted to tell the noble Baroness that I shall be happy to accept her amendment. I am very grateful to her for drawing the matter to my attention.

Baroness Hollis of Heigham

My Lords, let me thank the noble Earl most warmly. As he put it, it has indeed been a delight.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 28: Page 102, line 29, at end insert— ("( ) A person is also homeless if he has accommodation but—

1. (a) he cannot secure entry to it, or
2. (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

( ) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.").

On Question, amendment agreed to.

Clause 166 [Meaning of accommodation available for occupation]:

Earl Ferrers moved Amendment No. 29: Page 102, line 32, leave out subsection (1).

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 30: Page 102, line 36, leave out from ("or") to end of line 37 and insert— ("(h) any other person who might reasonably be expected to reside with him as a member of his family.").

Baroness Hollis of Heigham moved, as an amendment to Amendment No. 30, Amendment No. 31: Line 3, leave out ("as a member of his family").

The noble Baroness said: My Lords, I beg to move this amendment, as an amendment to Amendment No. 30.

On Question, Amendment No. 31, as an amendment to Amendment No. 30, agreed to.

On Question, Amendment No. 30, as amended, agreed to.

Earl Ferrers moved Amendment No. 32: Page 102, line 37, at end insert— ("References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.").

Baroness Hollis of Heigham moved, as an amendment to Amendment No. 32, Amendment No. 33: Line 2, at beginning insert — ("Accommodation made available subject to a tenancy shall not be regarded as available for a person's occupation if he is unable to comply, or it is unreasonable to expect him to comply, with the terms of the grant of the tenancy or the terms of the tenancy at the time of the grant, having regard, where such terms relate to the payment of rent or service charges or deposits of rent, to his own resources and any public assistance as is likely to be available to him. The Secretary of State may by order specify—

1. (a) other circumstances in which accommodation is or is not to be regarded as available for a person, and
2. (b) other matters to be taken into account or disregarded in determining whether accommodation is available for a person.").

The noble Baroness said: My Lords, I should like to move Amendment No. 33, standing in my name and that of the noble Baroness, Lady Hamwee, as an amendment to the Government's Amendment No. 32. I should like also to speak to Amendment No. 92, with which it is grouped. These are a pair of amendments on an issue raised earlier by my noble friend Lord Monkswell on affordability. I listened carefully to what the Minister said, but I was not persuaded that his reply fully covered all the points that had been raised. These amendments offer alternative routes to the same goal; the first amendment is about availability and the second amendment concerns suitability. There is no disagreement between us, I think, that if private rented accommodation is to be a realistic option for homeless families, it has to be affordable. It is increasingly important, given the fact that housing benefit only covers the full rent in something like 60 per cent. of cases and that the housing benefit situation has now been tightened up even more ruthlessly.

All the research I have seen suggests that eviction from the private rented sector is probably the single most common reason for homelessness, following only the breakdown of shared arrangements with families and friends. Looking at the quarterly returns to the Department of the Environment on homelessness—these are randomly chosen but fairly typical district councils—I notice that in Northampton, in the last quarter that I looked at, something like 13 of the 87 families accepted as homeless had been evicted from the private rented sector. In Eden District Council, five out of 12 had been accepted in that quarter. In Bury St. Edmunds, 12 of the 40 had been accepted in that quarter. For anywhere between a quarter and a third of homeless families, according to the statistics of district councils I have seen, the loss of private rented accommodation was the main reason for homelessness. It is often, though not always, because they cannot pay the rent and their benefit does not cover it, but it may be that the situation has been worsened because of the issues of rent deposit schemes and rent in advance.

This situation is likely to get worse, not better, given that in this Bill the Government make the six-month shorthold tenancy the residual tenancy with landlords having to opt out rather than opt in. In future, housing insecurity in the private rented sector will grow, not diminish. The Awua judgment accepted, as I am sure do the Government, that affordability is a material consideration. This is particularly a private rented sector problem. Rents in the private rented sector are likely to be anything between two-thirds and three times as much as equivalent council housing, especially in inner cities.

The Government accepted all of this in the consultation paper on allocations earlier this year. They stated that reasonable preference should be given to those with limited opportunities to secure settled accommodation to reflect the particular difficulties that some households on low income might have in obtaining such accommodation in the private sector. Such households may also find that higher rents in the private sector are a deterrent to taking employment, given the rate at which housing benefit is withdrawn. Recent Rowntree research shows that families who are locked into housing benefit face a 65p taper before adding in the taper from council tax. If they find a part-time job and are on family credit they will pay a marginal tax rate of about 97p in the pound.

The only question is whether it is better to do it through the first amendment, which regards affordability as part of the consideration of what is available, or the second amendment, which defines what is considered to be suitable. We hope that the Minister will indicate his preferred route and support one of the two amendments. I beg to move.

6.30 p.m.

Earl Russell

My Lords, the points that have been made are important. I am happy to support them. I do not believe that it is widely understood how far housing benefit now regularly falls short of meeting the rent. Shelter has today published a survey of a number of people rehoused in the private rented sector after homelessness. It finds that one fifth of them have had to find money from their benefits to pay their private sector rents. Shortfalls met from income support range from £2.15 to £23 a week. Twenty three pounds a week out of income support does not leave one with very much to buy something to eat. We would welcome an assurance that in cases like that the accommodation would not be regarded as suitable. This is particularly important now that it will be universal practice, as it has been previous common practice, for people to be given only one offer and then to be found to be intentionally homeless if they do not take it up. It is even more important than before that that one offer should be suitable.

The noble Baroness said only one thing with which I disagreed. I refer to her reading of the Awua judgment. I have read that judgment with care. The precise point in that case was that Miss Awua had received an offer of permanent accommodation which she had refused. Since that was the central issue in the case everything else in the case was really obiter. As I understand it, it was not a finding by the court that temporary accommodation by itself was enough to prevent a person from being homeless. It was temporary accommodation only in the context of an offer of permanent accommodation which had already been made and refused. According to my understanding, the last paragraph of the judgment—which I regret I do not have to hand at this moment—made that point entirely clear. Since that is to be superseded by this Bill I do not need to spend too long on it. It would be a pity if a myth entered housing law based upon a judgment which caused confusion because there were too many reasons why the judge decided the matter as he did. Therefore, to find the ratio decidendi would require a considerable number of further cases. I hope that we will concentrate on the fact that, if there is only one offer, it must be suitable. It is not suitable if one has to find a large part of the rent out of one's income support.

Baroness Hamwee

My Lords, I too support the amendment. I use this opportunity to put two questions to the Minister. First, I seek the confirmation of the Minister as to the meaning of "available". In particular, does it retain its normal meaning as "available for occupation by a particular person", attaching the availability to the person concerned? I ask that question because later, in the context of Clause 181, the Minister has tabled an amendment to provide for satisfaction "that the accommodation was suitable for him"; in other words, it applies suitability to an individual. I wonder whether there is any difference here to which we should be alerted.

Secondly, I should like to ask the Minister about the timetable for regulations. I thank him for his long letter which comments on a number of issues. That letter arrived in the course of this afternoon. In it the Minister says that his department intends to consult the relevant interested bodies about the content of regulations to be made under Part VII and to have those regulations ready in time for commencement. Can the Minister confirm that actual regulations will be ready for commencement, not—as might be read into this—draft regulations? It is important that the regulations on suitability are in place by the time that these parts of the legislation are in force.

Earl Ferrers

My Lords, flushed with the success of the previous amendment, I long to be helpful again to the noble Baroness. For the moment, my basket has run out of goodies, not because I disagree with the way in which the noble Baroness puts her case but because of the way in which the amendments may operate. The noble Baroness seeks to put beyond doubt that accommodation may be regarded as available to an applicant only if he is able to comply with the terms of the tenancy, in particular by being able to afford the rent. That may seem to be a perfectly reasonable proposition. Your Lordships will be aware that there was some discussion on the question of affordability at Committee stage when the noble Baroness, Lady Hollis, proposed a similar amendment. There is already a degree of case law to support the proposition that someone is homeless if he cannot afford the rent of a property and that accommodation that may be offered in discharge of a duty is not suitable if the applicant cannot afford the rent. I refer to the answer that I gave to the noble Lord, Lord Monkswell. One may be offered the Ritz but if one cannot afford it it is not much good. The noble Baroness feels that the matter is not beyond doubt and seeks to insert a provision to this effect on the face of the Bill.

In speaking to the amendment of the noble Baroness in Committee, my noble friend Lord Mackay of Ardbrecknish said that the proper place to set out what constituted affordability was in an order rather than on the face of the Bill. I believe that that is right. Circumstances and people's expectations as to what constitutes affordability are apt to change. It is important that we equip ourselves with powers which can adapt to changing attitudes and circumstances, even if that means, by the grace of the noble Earl, Lord Russell, secondary legislation. The noble Earl asked whether expensive accommodation was suitable. Accommodation is not suitable if a person has to find a large part of the rent himself and cannot afford it from his resources. The noble Baroness, Lady Hamwee, asked whether availability attached to a person. I answer that by reminding the noble Baroness of the example that I gave earlier. A single parent with five children may be offered one bedroom and a kitchen. That may be available to someone but it is not available to her, nor is it suitable for her.

With regard to the regulations, we intend to make an order on affordability before the commencement of the Act, I hope by October, and we will consult on the regulations and the form that they will take beforehand. It will be the final order. It will not be the draft order.

Baroness Hollis of Heigham

My Lords, I wonder whether there is as much difference between us as the Minister may think. Unless there was some slip of the tongue, what he said is that what counts as affordable would be conveyed in guidance. He did not say what counts as available but what counts as affordable would be conveyed in guidance. I absolutely agree. What counts as affordable should be conveyed in guidance but the question of affordability as part of the definition of being available or suitable should be on the face of the Bill.

I wonder if, with the leave of the House, the Minister can confirm that he did say what he meant to say, in which case he is actually supporting my argument that "affordable" should be part of the definition of the criteria of what is available or suitable, but that what counts as affordable in the light of the housing benefit situation and local reference rents should indeed be carried by guidance. In that case, there would be no difference between us. Therefore, I wonder whether the noble Lord did mean to say that what counts as affordable becomes part of the guidance or whether he meant to say what counts as available be part of the guidance. With the leave of the House, perhaps he could help me.

Earl Ferrers

My Lords, with the leave of the House, I will try to help the noble Baroness, though of course with words such as "available", "suitable" and "affordable" it can become quite complicated. Perhaps I can set the noble Baroness's mind at rest. I always enjoy doing so, and I seem to be doing that quite well this afternoon. I can confirm to her that we intend to make use of the order-making powers in this part to address the issue of affordability. We will use those powers in order to place beyond doubt that accommodation is suitable for an applicant only if it is affordable. We intend to discuss the detail of our proposal for this order with the local authority associations and other interested parties in due course. I hope that the noble Baroness may rest her head quietly in contentment, not only with my answer but also with the fact that we shall discuss it with the local authority associations before the order is produced.

Baroness Hollis of Heigham

My Lords, I thank the noble Earl for that answer. Our difficulty, of course, is that the case law has been somewhat opaque. I am simply concerned as to whether something which is quite so pivotal to the notion of accessibility—that is whether the rents are affordable—can be left to order-making powers. Obviously the Minister has said this on a previous occasion and we were not sufficiently persuaded, but we will consult and see whether his answer this afternoon still further allays our worries on the matter. With the leave of the House, I beg leave to withdraw the amendment.

Amendment No. 33, as an amendment to Amendment to No. 32, by leave, withdrawn.

On Question, Amendment No. 32 agreed to.

Earl Ferrers moved Amendment No. 34: Page 102, line 38, leave out subsections (3) and (4).

On Question, amendment agreed to.

Clause 167 [Whether it is reasonable to continue to occupy accommodation]:

Earl Ferrers moved Amendment No. 35: Page 103, line 5, leave out from ("that") to end of line 7 and insert ("this will lead to domestic violence against him, or against—

1. (a) a person who normally resides with him as a member of his family, or
2. (b) any other person who might reasonably be expected to reside with him as a member of his family.

For this purpose "domestic violence", in relation to a person, means violence from a person with whom he is associated, or threats of violence from such a person which are likely to be carried out.").

The noble Earl said: My Lords, I beg to move Amendment No. 35 and speak also to Amendments Nos. 37 and 76. These three amendments work together to deliver a commitment which was made in another place to broaden the definition of domestic violence so as to embrace violence from partners who are no longer living with the victim.

Amendment No. 35 expands the wording of Clause 167 so that it will not be reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him or against a member of his family who resides or might reside with him. Of course, as in the Civil Service, the male embraces the female and therefore that refers to her as well. It specifies that domestic violence is violence, or threatened violence from someone with whom he is "associated".

The definition of "associated" brings us to Amendment No. 37 which inserts a new clause after Clause 167 setting out the circumstances in which a person is "associated" for the purposes of Part VII of this Bill. It is a long and detailed list which some of your Lordships may recognise from the Family Law Bill. Indeed, that Bill was the source of this clause.

Amendment No. 76 is a small but significant consequential amendment. By extending those definitions and importing a definition of "associated person" into this part of the Bill, we are trying to tackle the situation whereby a person is subjected to violence or threats of it by a very wide but strictly defined group of people. Our main aim is to deal with actual or threatened violence on the basis of a person's relationship rather than on the basis of what might be described as a "residency-type qualification".

These are technical but important and significant amendments. I hope that your Lordships will agree to them. I beg to move.

6.45 p.m.

Lord Dubs

My Lords, a few moments ago, in relation to Amendment No. 31, the Minister accepted the amendment to delete the words as a member of his family". It seems to me that the same point would apply to Amendment No. 35 where, again, we have the same words. In so far as the Minister suggested there had been some oversight and that Amendment No. 31 corrected this, it may well be that the same principle would apply here and the Minister would be happy, pleased or delighted to accept the particular proposition. Obviously I do not have an amendment tabled to that effect, but if that were the case and the Minister were to say so, then clearly we could see what would happen at the final stage of the Bill. As is clear, the point is very different from the categories covered in Amendment No. 37, as is clear. So I hope that the Minister will see his way to agreeing that there is a small defect in Amendment No. 35 which he will put right.

Earl Ferrers

My Lords, I do congratulate the noble Lord, Lord Dubs. I think it is the first time today in which he has participated in our discussions. The proceedings have been bereft without him, even though they have been looked after by the noble Baroness with exemplary duty. He makes a very important point. The noble Lord is a man of great perspicacity because he has, I think, found something. I believe that he is right and, if I may, I will ensure that we amend that at a later stage in the Bill. I am grateful to him for his vigilance.

Lord Dubs

My Lords, with the leave of the House, I thank the Minister. It is a real delight.

Baroness Hamwee

My Lords, with the leave of the House, the Minister leapt to his feet so fast—he is obviously getting into practice—but my noble friend and I both have questions on Amendments Nos. 35 and 37.

My first question is to ask the Minister to confirm whether paragraph (f) in the new clause (set out in Amendment No. 37), which refers to both people having had "parental responsibility", covers the situation where one person is the parent of the child and the other is a step-parent. Sadly, there are occasions when the relationship between step-parents—one a natural parent and one a step-parent—has led to domestic violence. That is my first question in relation to subsection (1)(f).

My second question relates to the definition of "domestic violence", which is referred to as being violence or threats of violence from such a person which are likely to be carried out. I am concerned about how it is possible or whether it is appropriate in that context to assess the likelihood of threats being carried out rather than approaching this on the basis of the concern of the person who may be the subject of those threats; in other words, that domestic violence should mean actual violence or threats of violence which give rise to reasonable concern that they will be carried out, thus importing a degree of subjectivity rather than objectivity which may be very difficult to prove.

Earl Russell

My Lords, I thank the noble Earl for these amendments and I echo the question which my noble friend has just asked. But I believe that these amendments will sit well with Part IV of the Family Law Bill and provide a back-up where it is needed. It is a significant contribution to what the Government have done on that subject.

On Amendment No. 37, I should like to know that I am correct in my reading of the words and that this covers same-sex partners or carers. With that sole question, I welcome warmly these amendments.

Lord Monkswell

My Lords, I wish to continue the line of questioning which the noble Baroness, Lady Hamwee, adopted, in relation to what is meant by "domestic violence". Do the Government include within that term psychological violence as well as physical violence? I bear in mind the recent successful court case where a stalker was prosecuted for psychological rather than physical damage. Is that now included in government thinking about the term "domestic violence"? Does it include psychological as well as physical violence?

Earl Ferrers

My Lords, I apologise for jumping up and so bouncing the noble Baroness, Lady Hamwee, and the noble Earl, Lord Russell, from an opportunity to take part in the debate. I was so excited at being able to give the noble Lord, Lord Dubs, a bit of encouragement that I was accelerated in levitation and I should not have been.

The noble Baroness asked whether a step-parent would be included in these provisions. The full parent and one step-parent are covered by the term "parental responsibility". The noble Baroness was concerned also about whether violence would be carried out and about threats of violence. That depends very much on the case and whether it is a real threat. Obviously domestic violence takes a number of different forms and each case must be considered on its merits.

The noble Earl, Lord Russell, asked me whether the provision covers same-sex partners. It does because it covers cohabitants. If they are cohabiting, they are covered by the provisions of the Bill.

Baroness Hollis of Heigham

My Lords, I apologise for interrupting the noble Earl, but subsection (3) refers explicitly to a man and woman who are not married to each other but are living together as husband and wife. Therefore, it appears that the definition excludes same-sex partners. I hope that what the Minister says is correct, but if it is, the definition "cohabitants" would need to be amended accordingly.

Earl Ferrers

My Lords, I must say that the Opposition are scoring a lot of brownie points today. They are being enormously vigilant. The information which I gave the noble Baroness is wrong and the noble Baroness is right. I apologise for misleading your Lordships. I am very glad that the noble Baroness has corrected me.

I turn now to the noble Lord, Lord Monkswell. He is worried about psychological violence. I cannot think why he wants to be worried about that but he is. He asks whether that is covered by these provisions. I cannot give him a very good answer. It is not ruled out, but psychological violence covers a very wide spectrum. It would depend on the nature of the violence. We do not rule out the fact that psychological violence could be covered.

Baroness Hamwee

My Lords, before the Minister sits down, he confirmed that he was wrong to say that same-sex partners are not covered by the term "cohabitants". But will he confirm, as I believe is the case, that they are covered by paragraph (c)?

Earl Ferrers

My Lords, the noble Baroness asks another important question to which the answer is in the affirmative.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 36: Page 103, line 7, at end insert— ("( ) "It is not reasonable for a person to continue to occupy accommodation if proceedings for possession of the dwelling house have commenced and the person has no defence against those proceedings.").

The noble Baroness said: My Lords, this amendment deals with possession proceedings and the extent to which it is necessary to require a defendant in such proceedings to go all the way through with them, if I can use that expression.

The point was dealt with, although rather late, at the last stage of the Bill on 19th June and the Minister commented on the matter at col. 416. At that time, I argued that it was inappropriate to require people threatened with homelessness and who have no defence to go through with the expense and ordeal of a court hearing where a mandatory possession order is inevitable. Not only will those people incur expense, but so too will everybody else involved. The stress as well as the expense is an important factor in that regard.

Eviction from assured shorthold tenancies is an increasingly common cause of homelessness. The noble Baroness, Lady Hollis of Heigham, referred to that earlier today. Some 11 per cent. of homeless households accepted for rehousing have become homeless because of the ending of an assured shorthold tenancy. The Bill is aimed at making such tenancies the default tenancies, if I can put it that way, of the future.

The Minister said that the department's recent study which evaluated the Homelessness Code of Guidance found that almost all—something like 94 per cent., he said at col. 416—authorities would take a notice to quit or a notice of seeking possession as evidence of impending homelessness. Accepting that, it nevertheless leaves some 6 per cent. or thereabouts which do not take notice to quit and so on as evidence of impending homelessness. Some authorities undoubtedly are still insisting on tenants undergoing the expense and problems associated with a court hearing to gain a possession order before they can be accepted as homeless.

I believe that that approach is counter-productive. I have referred to costs. The load of court business is also increased and I think that requiring tenants to stick it out to the very last, when inevitably they will have to leave, is contrary to the Government's own aim of encouraging landlords to let their properties.

I tabled the amendment again in the hope that the Government may agree to include some such provision in the Bill which would in no way undermine what they are intending to do. It is a practicable and sensible provision. I beg to move.

7 p.m.

Earl Ferrers

My Lords, the noble Baroness said that she tabled this amendment again to enable the Government to reconsider it. She is right to be concerned. There are always border lines and it is always right to be concerned about those people who fall on the wrong side of the border line. The noble Baroness said that she did not want the inclusion of this amendment to undermine what we are trying to do in the Bill.

The Homelessness Code of Guidance makes it clear that authorities should not require applicants to have to fight possession proceedings where there is no chance of success—for example, when an assured shorthold tenancy is being repossessed at the end of a fixed term—before accepting that a household is being threatened with homelessness. Indeed the recent Department of the Environment study—an evaluation of the Homelessness Code of Guidance—showed that almost all authorities (94 per cent.) would take a notice to quit or notice of seeking possession as evidence of impending homelessness. The noble Baroness, Lady Hamwee, said that about 6 per cent. do not do so. As the accountants would say, the arithmetic stacks up between us.

We have tried to guide the 6 per cent. to accept such orders, but we would not wish to make that mandatory in every case. That is why I am doubtful that we want the proposition advanced in the amendment. There are many different forms of tenancy, and many different grounds for possession. There are many defences which can apply in particular cases, both technical—for example, the proper service of notices—and substantive. In some cases it would be extremely difficult and costly for a local authority to make a decision without going through the facts of each case.

A possession order may take several months to come into effect. We do not believe that it is either necessary or reasonable to expect local authorities immediately to assist people in such a position. We would however expect authorities to be ready to assist people where they have been alerted to the existence of a possession order, and to make appropriate arrangements without insisting that an applicant goes to court. If it were to prove necessary, the Secretary of State could make an order under this clause—with the agreement of the noble Earl, Lord Russell—to ensure that authorities take proper account of possession orders in assessing whether it is reasonable for an applicant to continue to occupy accommodation.

I understand the concern behind the amendment—the noble Baroness is quite right to be concerned—that people with no defence against a possession order should receive timely assistance. However, as the existing arrangements are shown to work well—and we can reinforce the point when we issue new guidance, as we probably shall—I advise your Lordships not to introduce a new requirement which, at the margin in a difficult case, would require a local authority to anticipate the decision of the courts. I hope that on reflection the noble Baroness will agree that that is the right course to take. It has worked well and I suggest that it would be better for us to continue with it rather than to include mandatory requirements in the Bill.

Baroness Hamwee

My Lords, I wonder whether it has worked as well as the Minister says. The percentage which he gave—and which his noble friend gave at the previous stage—of 94 per cent. was not a percentage of all cases; it was a percentage of authorities which take notice to quit as evidence of impending homelessness. That does not suggest to me that the provision is working well. Rather it suggests that some authorities take one line while others routinely do not take note of notice to quit. I am not convinced, from the way the Minister has presented this, that the code of guidance could be capable of being used to distinguish between good notices to quit and bad notices to quit, if I can put it that way. I refer to the notices which will be effective and those which may not be effective. However, perhaps this is not the point at which to pursue the matter further. For the moment we shall have to agree to differ. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Ferrers moved Amendment No. 37: After Clause 167, insert the following new clause—

MEANING OF ASSOCIATED PERSON

(".—(1) For the purposes of this Part, a person is associated with another person if—

1. (a) they are or have been married to each other;
2. (b) they are cohabitants or former cohabitants;
3. (c) they live or have lived in the same household;
4. (d) they are relatives;
5. (e) they have agreed to marry one another (whether or not that agreement has been terminated);
6. (f) in relation to a child, each of them is a parent of the child or has, or has had, parental responsibility for the child.

(2) If a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976, two persons are also associated with each other for the purposes of this Part if—

1. (a) one is a natural parent of the child or a parent of such a natural parent, and
2. (b) the other is the child or a person—
1. (i) who has become a parent of the child by virtue of an adoption order or who has applied for an adoption order, or
2. (ii) with whom the child has at any time been placed for adoption.

(3) In this section— "adoption order" has the meaning given by section 72(1) of the Adoption Act 1976;

"child" means a person under the age of 18 years;

"cohabitants" means a man and a woman who, although not married to each other, are living together as husband and wife, and "former cohabitants" shall be construed accordingly;

"parental responsibility" has the same meaning as in the Children Act 1989; and

"relative", in relation to a person, means—

1. (a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person's spouse or former spouse, or
2. (b) the brother, sister, uncle, aunt, niece or nephew (whether of the full blood or of the half blood or by affinity) of that person or of that person's spouse or former spouse, and includes, in relation to a person who is living or has lived with another person as husband and wife, a person who would fall within paragraph (a) or (b) if the parties were married to each other.").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 35. I beg to move.

On Question, amendment agreed to.

Lord Lucas

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begins again not before five minutes past eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.