Housing Bill

HL Deb 08 July 1996 vol 574 cc83-166

Consideration of amendments on Report resumed.

Clause 168 [Duty of local housing authority to provide advisory services]:

Earl Russell moved Amendment No. 38: Page 103, line 20, leave out subsection (1). The noble Earl said: My Lords, I am sure that the Minister is well aware that appearances are frequently deceptive. My noble friend Lady Hamwee and I have put down amendments dealing with the same point which appear to have opposite effects, but, in fact, are destined to achieve exactly the same end. We are concerned with subsection (1) of Clause 168, which requires local housing authorities to, secure that advice and information about homelessness … is available free of charge to any person in their district".

We both wanted to know what this clause meant. I approached that by a standard probing device of putting down an amendment to leave out the clause. My noble friend has approached it by the opposite route of laying down a more detailed specification of what it might include. We both wish to know what it does.

When I first saw this clause I must admit that I was reminded of the provision in the arrangements for the Social Fund, which deals with those who are held to be too poor to receive any assistance from the Social Fund. They are, instead, given money advice. I have always wondered what use that provision was to anybody. I am slightly more reassured about that as we have gone through the Bill, but I should like to be reassured that it does mean something a little more helpful than that.

I am reminded of an occasion when I was a first year postgraduate, and I asked for information which was available, as I subsequently discovered, in one of the standard works of reference. My supervisor told me, "There is a book in the Bodleian". It was some time before I discovered that book. Similarly, if one were to tell homeless people, "There is housing available in Tower Hamlets", it might be quite some time before they discovered that housing. That is why I should like to know that something a little more specific than what I was offered by my supervisor is offered to the homeless under this clause. I beg to move.

Baroness Hamwee

My Lords, instead of allowing my noble friend Lord Russell to act as the curtain-raiser, I wonder whether I should leave it as a sort of one-act show. The purpose of my amendment, Amendment No. 39 in this group, is to highlight the importance of the availability of services being made widely known. I propose that there should be independent and comprehensive advice, which is not only valuable in itself, but often necessary as a check on local authorities—I say that with my local authority background—to tackle the root causes of homelessness. There are many causes and complex inter-relationships of causes. It is a tool for developing a more strategic approach to the problem.

The duty proposed in the Bill does not specify that at least an element of independent advice should be included and the duty of local authorities should not be restricted to advice which seeks to prevent homelessness—although that in itself is important—but should address the strategic problem of housing insecurity by providing comprehensive housing advice. Independent advice is good because it should be accessible to those who need it. I include owner occupiers and tenants in the private rented sector. It is more accessible than perhaps a statutory service may be able to provide and relevant to those groups—owner occupiers and tenants in the private sector—who may not regard the local authority as a likely source of assistance.

I mentioned the need for a check on the quality of local authority decision-making. That has been the thrust of many of our amendments over the two stages of the Bill. I believe too—again either with the benefit of my local authority background or despite it—that independent advice can often provide very good value for money. It may perhaps lend itself more than statutory advice to the settlement of disputes. We are in an age in which mediation and reconciliation are regarded as more important than perhaps they were some years ago.

I believe that the department supports independent advice. It has funded the national homelessness advice service. The interim report by the noble and learned Lord, Lord Woolf, on access to justice recognises the importance of independent advice. In another place the Minister said that an amendment to that effect was unnecessary and would be an additional cost to local authorities. However, although I should like to go along with the underlying notion that all local authorities carry out good practice, I fear, sadly, that that is not the case.

The amendment is based on parallel provisions in the Children Act. It is not clear why the provisions were necessary there, or at any rate acceptable, but here they are unnecessary.

Baroness Hollis of Heigham

My Lords, I support both amendments, Amendments Nos. 38 and 39, which are grouped together, using them to make a point that we have not discussed elsewhere in the Bill. It is a point to which we may wish to return on Third Reading. It is the problem of homelessness which faces those owner occupiers in the private sector mentioned by the noble Baroness, Lady Hamwee—those who face repossession for all kinds of reasons but who, by definition, will not currently be on the waiting list. Most other forms of housing need, if one is in private rented accommodation or the like, put one in a position to go on a housing waiting list. No local authority will accept an owner occupier on a waiting list unless there are very strong medical grounds for a change of housing.

It seems to me that we could reasonably ask local authorities to pursue rather more vigorously ways in which they can help someone facing repossession to retain his home, if not necessarily his tenure. That would mean not so much a rent-to-mortgages scheme (as when the Government pushed us so hard in the Leasehold Reform, Housing and Urban Development Bill) but that local authorities should seek to establish wherever possible a mortgages-to-rent scheme. I shall not go into the matter in any great detail tonight. It may be that we shall come back to it at Third Reading. But, given all the alterations in income support arrangements, of which Ministers on the Government Front Bench will be well aware, there is for many, particularly those who are bad insurance risks by virtue of their occupation—insecure; contract; part-time; flexible; based on commission or whatever—real difficulty in being able to retain their home.

I know that mortgages-to-rent schemes are not easy, especially when arrears remain as a debt. But, given the problem of negative equity, the sale of the property is not an easy option either. Also, given that there is not a low income mortgage support scheme, owner occupiers need a route into housing benefit if they are to remain in the same home and there bring up their children.

I understand that there are good examples of mixed tenure—part renting, part owning—in the social housing sector under the Joseph Rowntree Trust and other housing associations. I believe that some building societies, for example, Bradford and Bingley, have an excellent record in helping people remain in occupation of the house through a mortgages-to-rent scheme and making possible staircasing down.

I use the amendment as a hook to raise the issue. It struck me that at no stage in all our discussions have we considered the situation of an owner occupier faced with homelessness who, by definition, until the point of homelessness, was unable to go on the housing waiting list. It is important that local authorities should be encouraged, under the advice and assistance rubric, actively to enter discussions with building societies to see to what extent they can promote mortgages-to-rent schemes in their localities.

8.15 p.m.

Earl Ferrers

My Lords, I was fascinated to see the noble Earl, Lord Russell, table an amendment to leave out subsection (1) and his noble friend Lady Hamwee put down an amendment to keep in subsection (1) and add a lot of things to it. I do not know whether or not noble Lords on the Liberal Democratic Benches talk to each other but on these Benches we always try, as the expression goes, to sing from the same hymn sheet. Anyhow, they have introduced two amendments which are totally different and the noble Baroness, Lady Hollis, said that she wanted to support both. So she rather indelicately sits astride the hedge and waits.

The noble Earl, Lord Russell, tabled his amendment obviously from his frustrated experience as an undergraduate when he was told by his tutor to go down to the Bodleian and find a book there. I suppose that is the way you are taught if you go to Oxford. Some people who go to other places are taught differently. I can assure the noble Earl that times have moved on since 1868 and different practices occur.

The level of advice and assistance that is available to a person who may be experiencing, or is about to experience, a housing crisis varies throughout the country. Some authorities already provide good advisory services, but recent research that we commissioned showed clearly that provision is patchy overall.

We want to ensure that people are properly informed and to do that we must ensure that they have access to proper advice. In that way we can help prevent people becoming homeless in the first place. Research shows that timely housing advice can prevent homelessness by enabling a particular problem to be tackled in good time or an alternative housing solution to be found before a crisis develops. This new duty will ensure that people everywhere have the benefit of a good advisory service.

It will be for each authority to decide the precise issues and areas that the services should cover. Different areas will require different types and levels of service. The revised Homelessness Code of Guidance to Local Authorities when it is issued will cover that matter, but we would not want to dictate from central government exactly how the services should be provided.

Authorities will not have to provide the advice themselves, although they may if they want to do so. They can invite other agencies to act as the provider. In many areas there will already be established organisations which provide housing advice services, and the authority may want to harness existing expertise to provide the service which is required under the new duty.

Amendment No. 39, in the name of the noble Baroness, Lady Hamwee, seeks to insert a new subsection into Clause 168, requiring authorities to publish and disseminate information about services they provide, either directly or indirectly, and to take steps to ensure that those who might benefit from the services receive that information. I understand the concern of the noble Baroness in tabling this amendment. However, I do not believe that it is necessary. The imposition of a specific requirement to publicise and disseminate advisory services would be burdensome on local authorities. Moreover, it would require the Government to be prescriptive about how it should be done. We would have to tell them what to do and the noble Earl, Lord Russell, would not like that—he does not like the Government telling people what to do. We do not wish to be prescriptive: we wish to retain flexibility, so that authorities may decide what is appropriate in each case.

It is clearly in an authority's own interests to ensure that its services are brought to the attention of people in its area, in particular to help reduce the number of homelessness applications. But we do not believe it is necessary to put the requirement on the face of the Bill. We have repeatedly made clear that the revised guidance will cover advisory services, and I believe that is the right vehicle by which to persuade authorities of the benefits of publicising their services.

The noble Baroness, Lady Hamwee, asked whether the advice should be independent and whether it should extend to owner occupiers and private tenants. It is for a local authority to decide what to do. Many will support independent advice either by grant or by contract. There is no reason why the advice should not extend to owner occupiers and tenants and why it should not be independent. That, too, is a matter for local authorities.

The noble Baroness, Lady Hollis, raised the question of mortgage-to-rent schemes. It is important, if unnecessary repossessions are to be avoided, that borrowers who are in difficulty should have access to sound advice and good counselling at the earliest possible stage. It is often the fact that borrowers in difficulty have multiple debt problems; it is not just the borrowing, there are other problems as well. The advice that they are given often needs to reflect a wide range of problems as well as the procedures, benefit entitlements and possible escape routes. There is therefore a need for co-operation and co-ordinated action by the main agencies involved in order to ensure that the borrowers who are in difficulty receive effective advice and the support that they require to meet their needs.

A joint working group of the Council of Mortgage Lenders and local authority associations found that that co-ordination can be achieved through local arrears fora which are set up by the local authority and can include representatives of mortgage lenders, local advice agencies and the benefits agencies. A number of local authorities have already set up those fora and the Government recommend that other authorities should follow suit.

The noble Baroness mentioned in particular mortgage-to-rent schemes. Those are one of a range of measures operated by lenders with the help of housing associations, local authorities and others in order to avoid repossessions. Mortgage-to-rent schemes have been used successfully, notably by the Bradford & Bingley Building Society. I agree with the noble Baroness that those schemes and other mortgage rescue operations should be welcomed. Local arrears fora, which are run by local authorities, are well placed to assist with that.

To encapsulate my response: the amendments are unnecessary.

Earl Russell

My Lords, my amendment and that of my noble friend Lady Hamwee work well together. Mine was meant to be the advance reconnaissance party, sent out to probe the enemy's advance. I probed and found it non-existent. My noble friend's amendment was meant to be the main body of our forces, brought along to go through the gap.

I asked the Minister what the clause would mean in practice. The Minister told me, if words mean anything at all, that he really does not know. Immediately afterwards he told my noble friend that her amendment is unnecessary. He can perfectly well have one of those propositions; I do not see how he can have both. If he does not know what will be done under the clause, how can he know that my noble friend's amendment is unnecessary.

I thought the Minister might make a great virtue on this amendment of not wanting to be prescriptive. It is strange how eager the Government are to be prescriptive when it is a matter of stopping other people from doing things and how reluctant they are to be prescriptive when it may be a matter of offering some urgently needed help. We on these Benches take the duty to supply advice very seriously. My honourable friend Mrs. Maddock in another place was responsible for strengthening the provision before us. I am glad that she did so. We would like to do more of this. We would like real advice to be available and, as my noble friend said, we would like that advice to be independent. I do not see that we have got that here.

I am sure that my noble friend will want to think about what she will do with her amendment at the next stage of the Bill. However, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Clause 172 [Application for assistance]:

Earl Russell moved Amendment No. 40: Page 104, line 41, leave out from ("accommodation") to end of line 44.

The noble Earl said: My Lords, this is another probing operation. It deals with the requirement to offer assistance in obtaining accommodation. Again, I tabled a probing amendment to leave out the requirement in the hope of persuading the noble Earl to tell me exactly what it means.

"Assistance" can mean all kinds of things. It can mean anything from what I quoted just now down to a detailed list of addresses, rents and so forth. Of course, as the noble Lord, Lord Swinfen, reminded us earlier, assistance for people with special needs may have to be extremely specialised and well informed if it is to work. Indeed, for people with limited mobility the need for advice to avoid them going all around The Wrekin looking in the wrong place may be extremely important.

We need to know what is meant by "assistance" before we can decide whether it is worthwhile. Both advice and assistance, if they are to soften the apparently harsh outlines of Part VII of the Bill—Ministers have often urged us to think that they do soften those harsh outlines—will need to be reasonably precise. One cannot soften things with hot air. I beg to move.

Baroness Hamwee

My Lords, I wish to speak to this group of amendments. The noble Lord, Lord Swinfen, mentioned earlier that there are some interesting groupings: this may be one of them.

Amendment No. 41 stands in my name and that of the noble Baroness, Lady Hollis of Heigham. It is an amendment to Clause 173 proposing a presumption of eligibility. It proposes that the authorities, in establishing eligibility under Clause 174 which deals with persons from abroad, shall, satisfy themselves, if the applicant is eligible for assistance, whether any duty, and if so what duty, is owed to him under the following provisions of this Part". As drafted the Bill allows authorities to make such inquiries as are necessary to satisfy themselves whether a person is "eligible for assistance". It will be based on immigration status. Other noble Lords have far more experience than I do of the arcane provisions of this part of the law. It is enough to say that it is complex and, having taken part in the spectator sport of the debate on the application of certain provisions, it is certainly safe to say that housing officers are not likely to find it straightforward to apply.

They cannot be expected to be familiar with immigration law and practice. The applicant's immigration status will be a major factor. The groups who will be excluded include, of course, illegal entrants, people given temporary admission and those given limited leave on the basis of having no recourse to public funds; people who fail the habitual residence test, as well as the asylum seekers. The experience of the habitual residence test in housing and income support cases suggests that the test is applied in different ways in different authorities and within authorities. This is a matter that has been referred to at an earlier stage of this Bill. The factors to be assessed include the length and continuity of residence, future intentions, employment prospects and others. As I say, it is not straightforward.

The amendment is not a weaker test. It proposes that unless there is full evidence of ineligibility based on fact, the local authority cannot refuse assistance. It may be more onerous to establish ineligibility, but that will only arise in certain cases because the majority of applicants will be eligible. It differs from the proposed test where the authority has to satisfy itself that the applicant is eligible and therefore would have to subject every applicant to the test. The test that this amendment proposes would ensure that people are not refused assistance where they are eligible, but would achieve what I understand to be the Government's intention of excluding people who are not eligible. It is particularly important in that the amendment would avoid the scope for discrimination, which would almost certainly arise under the current test where housing officers need only satisfy themselves about a person's status.

8.30 p.m.

Lord Mackay of Ardbrecknish

My Lords, I have made clear on a number of occasions that the Government attach great importance to ensuring that persons from abroad who do not have a valid claim to assistance under the homelessness legislation should not have access to it. As far as that assistance is concerned, it is pretty clearly explained in Clause 172. Just before the portion which the noble Earl would like to be removed from the Bill through his amendment, the clause refers to, 'assistance under this Part' means the benefit of any duty under the following provisions of this Part relating to accommodation or assistance in obtaining accommodation". So the assistance that we are referring to is the assistance which is described in the rest of Part VII of the Bill.

What we are attempting to do in this part of the Bill, and in one or two other parts of the Bill still to be considered, is to ensure that those who do not have a valid claim for assistance under the homelessness legislation should not have access to it. Therefore, it will be necessary for authorities to make sure that applicants are eligible for the assistance they seek. That is why the Bill is drafted as it is. Clause 173(1) requires authorities, to satisfy themselves whether [an applicant] is eligible for assistance". This is a prerequisite if we are to be sure that costly assistance provided at the expense of the national taxpayers and the local council taxpayers is not exploited by those who are not entitled to it.

Amendment No. 41 would undermine this aim by removing the requirement for authorities to satisfy themselves whether applicants are eligible for assistance under Part VII. Indeed, authorities would need only to make such inquiries as were necessary to establish whether applicants were ineligible for assistance. That changes the onus.

It might be argued that the effect of the amendment is a little different from what is currently drafted in the Bill. In that case your Lordships may wonder why we should be invited to make this change since I do not believe that it clarifies the authority's duty in this area. I believe that, if anything, the amendment seems to replace what is a very clear provision with something which is much more vague and, consequently, it is unhelpful.

Some of your Lordships have previously expressed concern that housing authorities will find it onerous to have to consider a person's eligibility, which in effect will mean probing his immigration status. If I understood the second contribution from the Liberal Democrat Benches from the noble Baroness, Lady Hamwee, that is what she was discussing, at least in part.

I have said on a number of previous occasions that authorities already have to take into account the immigration status of homeless applicants following the Court of Appeal's decision in 1993 in the Tower Hamlets case. That concerned applicants who had entered the country illegally or who had overstayed their leave to remain. No duty under the homelessness legislation is owed in either case. Following that decision, my right honourable friend the Secretary of State for the Environment issued a revised homelessness code of guidance to local authorities concerning applications from persons outside the United Kingdom, including a model screening procedure for making inquiries about immigration status in a sensitive and non-discriminatory way. Indeed, I believe that I have spoken at greater length about the revised homelessness code on previous occasions.

That guidance also makes clear that information about an applicant's immigration status can be obtained by local authorities from the Immigration and Nationality Department at the Home Office, if that is necessary. We intend to issue a revised guidance on handling these aspects of homelessness applications when the provisions in Part VII come into force. It is important that authorities are under a clear obligation to determine whether a homeless applicant is eligible for assistance as part of their inquiries to satisfy themselves whether any duty is owed under Part VII.

Amendment No. 41 would undermine the provisions in the Bill which provide for that. Amendment No. 40 would remove the definition of "eligible for assistance" in Clause 172. As I have already said, the concept of eligibility is an important one. It is a thread which runs right through Part VII of the Bill. The removal of the definition would be neither helpful nor desirable. With that explanation of how the system will work, and perhaps the reference to some other speeches that I have made both on this Bill and the Asylum and Immigration Bill, I hope that the noble Baroness and the noble Earl can withdraw their amendments.

Earl Russell

My Lords, I thank the Minister for that reply. Of course, he is not the only one who has made other speeches. The Minister may remember a number of debates on amendments moved by his noble friend Lady O'Cathain which were concerned with the pressures on airlines of trying to judge immigration status. That case was very well made out and it was extremely persuasive. I was happy to support it. Some small part of that case has now been heard and I am glad that it has. But I do not believe that local authorities are any more competent to judge immigration status than are the airlines—indeed, they are possibly slightly less able because airlines inevitably have some knowledge of traffic from country to country whereas local authorities, by their very definition, very often do not.

So if one of these cases has prevailed and the other has not, I do not believe that it is because of the superior intellectual merits of the one which has prevailed. In saying that I do not in any way wish to denigrate the case which has been made on behalf of British Airways, with which I agree.

As for my own amendment, the Minister reminded me very vividly of an exchange which took place in another place in, I believe, 1956, between Mr. Aneurin Bevan and the right honourable Alan Lennox-Boyd. Aneurin Bevan asked when it would be appropriate to give Cyprus independence. The Minister said, "At the appropriate moment". He was asked, "What is the appropriate moment?" and the Minister replied, "The appropriate moment is the appropriate moment". The Minister has told me that "assistance under this Bill" is assistance under this Bill. I shall read what he said carefully to see whether I can find anything else in it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 173 [Inquiry into cases of homelessness or threatened homelessness]:

[Amendment No. 41 not moved.]

Baroness Hamwee moved Amendment No. 42: Page 105, line 14, at end insert— (" ( ) If the authority are satisfied that other suitable accommodation is available for occupation by the applicant and have a duty under section 185 they shall at the same time notify him of the address of the dwelling-house which they are satisfied is available for his occupation.").

The noble Baroness said: My Lords, government Amendment No. 71 is grouped with my amendment, Amendment No. 42. My amendment, which is very specific, is the vehicle for asking precisely how the Government expect that a local housing authority will exercise its duty and, in particular, how we can expect accommodation to be suitable for an applicant if no specific address is in mind. That links to government Amendment No. 71 and allows me to ask what is meant by subsection (3) which states: The duty ceases if the applicant fails to take reasonable steps to secure such accommodation". I believe that "accommodation" is used there in the general sense.

My amendment deals with specific accommodation, and suggests that an applicant should be directed to a specific property which is both suitable and available. Without having the address of the property, the applicant would not be able to challenge a decision involving advice and assistance under Clause 185. It would not be possible to challenge the fact that the accommodation may be unsuitable without particular accommodation being in issue.

Perhaps I may give one example. A private landlord may own a block of flats which may generally be available to people on benefits. However, to take the sort of example which the noble Lord, Lord Swinfen, has rightly been using, an applicant may be directed to that block in which a ground floor flat may be "appropriate"—with apologies to Aneurin Bevan and Mr. Lennox-Boyd—but the particular flat on offer may be on a higher floor and may not be accessible to someone with mobility problems. If the authority merely has to indicate that "accommodation" (in a general sense) is available, accommodation may not really be "available"—in the normal understanding of that word—to that applicant because the accommodation on offer may be unsuitable for him and he may then be unable to secure any accommodation. My amendment is designed to link a property to an applicant and vice versa. I beg to move.

Lord Swinfen

My Lords, I should like to take this opportunity to thank my noble friend for tabling Amendment No. 71 which I suspect is in response to an amendment that I moved in Committee. Amendment No. 71 goes nearly all the way to meeting what I wanted. Indeed, it is so close that I do not think that it makes a great deal of difference but, as I said earlier, as a result of the tabling of Amendment No. 71, I shall not be moving Amendment No. 73, which was designed purely to make certain that the Government came up to scratch.

8.45 p.m.

Earl Ferrers

My Lords, I am grateful to my noble friend for tabling an amendment to ensure that the Government come up to scratch. I cannot see why on earth he thought that it was necessary to do such a thing—the Government always come up to scratch.

I was fascinated by the anecdote given by the noble Earl, Lord Russell, about Aneurin Bevan and Lennox-Boyd. The noble Earl said that Lennox-Boyd said that Cyprus would be given independence "at the appropriate moment" and, when asked what the "appropriate moment" was, said, "The appropriate moment means the appropriate moment". I remember one of his colleagues giving a different answer when asked when Cyprus would be given independence. He said "Never". That was Mr. Henry Hopkinson who later became Lord Colyton and, for that minor indiscretion, he found himself in the Foreign Office for not too long. That is why Ministers sometimes choose their words very carefully. I shall endeavour to choose my words with equal care this evening so that I shall not suffer the same fate.

The noble Baroness, Lady Hamwee, has moved her amendment, Amendment No. 42. My amendment is Amendment No. 71 and I hope that the noble Baroness will not think it totally discourteous of me if I explain my amendment first because, when I have done so, I think that the noble Baroness will see how her amendment does or does not fit in.

Concerns were expressed by a number of noble Lords during Committee stage that the provisions in Clause 185 did not offer sufficient protection. Some noble Lords, in particular the noble Baroness, Lady Hamwee, felt that the provisions might allow a let-out for less scrupulous authorities. In response to the noble Baroness, my noble friend Lord Mackay of Ardbrecknish said that it was our intention to put forward amendments for consideration on Report which would clarify the level of advice and assistance which was expected of local authorities. Since Committee stage, officials have been discussing with Shelter and the local authority associations possible measures to clarify the nature of the duty. Amendment No. 71 delivers the result. I thought that the noble Baroness, Lady Hamwee, would be delighted, just as my noble friend Lord Swinfen has said that he is.

Amendment No. 71 makes it clear that an authority must be satisfied that the advice and assistance it has provided is sufficient to enable the applicant to secure accommodation. This amendment strengthens the provisions in Clause 185, while ensuring that the applicant takes some responsibility for arranging his own accommodation.

Clause 185 is an important provision: it is a halfway stage between the full homelessness duty and the purely advisory role. In order for this provision to work, it is important for the applicant to play his part in finding a solution. By encouraging people to take some responsibility for finding their own housing, Amendment No. 71 preserves the role of the individual. At the same time, it will give people the confidence that they will be given proper support in their endeavours.

The provisions in Clause 185 provide a practical way in which applicants can help themselves without having to place themselves entirely at the mercy of the local authority. Amendment No. 71 strengthens those provisions. That is the position with regard to my amendment. Amendment No. 42, in the name of the noble Baroness, Lady Hamwee, would require a much increased involvement of the local authority in securing the alternative accommodation for the applicant. By requiring an authority to give the applicant the address of the property which it is satisfied is available, the amendment could come close to placing a duty on the authority actually to do the whole job of securing the accommodation for the applicant.

There will be a number of ways in which an authority can provide the necessary advice and assistance for the applicant. In some cases this may involve identifying a particular property which it knows to be available, but in others the authority may establish links with a landlord who has a range of property, or with a letting agent. It may refer the applicant to that landlord (or agent) and leave them to sort out which of the properties in the landlord's portfolio the applicant is to take. Were the amendment to apply, that sort of process would not be possible.

The noble Baroness asked whether accommodation (in the general sense) has merely to be available. The answer is no; the accommodation must reflect the applicant's personal characteristics. That is explained in subsection (4)(a) which is introduced by our Amendment No. 71. The noble Baroness asked how an applicant can challenge whether alternative accommodation is suitable and available if the local authority does not specify the actual address. It is understood in the phrase "alternative accommodation" that there is a duty under Clause 185 which is not discharged if suitable accommodation is not actually secured, unless the applicant has failed to take reasonable steps to secure it himself.

I think it is necessary to ensure that the applicant does take reasonable steps to ensure these things. He ought to have advice and help from the local authority but he cannot be removed entirely from the responsibility of doing it. It would be wrong if he were, because it would or could place quite intolerable burdens on the local authority.

I would end by saying that Amendment No. 71, which is in my name, prevents the authorities from taking an unreasonably short-term view of what constitutes suitable alternative accommodation, but at the same time it places some responsibility on the applicant to take up the opportunities which are provided to him. I think that a provision like that is preferable to an open-ended duty of the kind proposed by the noble Baroness. That is why, in a spirit of total modesty, I suggest that my amendment might be better than that of the noble Baroness.

Baroness Hamwee

My Lords, with the leave of the House, I should like to ask the Minister two questions. The first refers to his amendment. He has directed your Lordships to subsection 4(a) which requires the authority to have regard to all the circumstances, including the characteristics and personal circumstances of the applicant. Can the Minister help me and perhaps others of your Lordships by saying what is meant by the word "characteristics"? Is that something different from need? Secondly, as regards my amendment, I am still unclear—and perhaps the Minister can give me a short answer—how, if the authority is not aware of the address of a property, it can know that it is suitable.

Earl Ferrers

My Lords, with regard to the first of the noble Baroness's questions, the characteristics and personal circumstances of the applicant are exactly what they are said to be, to repeat the advice of Alan Lennox-Boyd. He said, if I might transpose this, that the characteristics and personal circumstances of the applicant mean the characteristics and personal circumstances of the applicant. In other words, a person has certain characteristics; his requirements and needs are of a certain nature. I have used before as an example the extreme case of a person who may be a single parent with five children, and she has certain characteristics and certain circumstances to which the housing provisions have to be made appropriate. You can find other examples among those who may be disabled, mentally ill or tied down by children. These are all the characteristics of the applicant and they must be taken into account.

The property will be suitable if in practice it meets the needs of the applicant. I cannot go any further than that, and I am sure the noble Baroness will understand why. The purpose is to ensure that a housing situation meets the needs of a particular applicant, and the needs of one applicant are different from those of another. It is the characteristics of a particular applicant which determine whether or not the housing which is available is appropriate to that applicant.

Baroness Hamwee

My Lords, I will think about this and perhaps put down an amendment at Third Reading to change "characteristics" to "needs". I remain concerned about this because if an applicant cannot find secure alternative accommodation he will re-apply, and so we are faced with a fast-revolving door. It would be churlish not to acknowledge that the Government have moved, even if not quite as far as I personally would have wished. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 174 [Persons from abroad not eligible for housing assistance]:

Earl Russell moved Amendment No. 43: Page 105, line 27, at end insert— ("provided always that no British subject shall be deemed to be, a person from abroad.").

The noble Earl said: My Lords, perhaps I may be forgiven if for a moment I thank the Minister for introducing the case of the late Lord Colyton, formerly Mr. Hopkinson. I remember it well: Mr. Lennox-Boyd was clearing up the mess it created. By coincidence, one of my academic colleagues happened to have read in the Public Record Office, where it is now in the public domain, the brief from which Mr. Hopkinson spoke. Though it did not say "never", the word "never" was written in the margin and he made the mistake of reading it out. The conclusion I have drawn from this story, and of which I become more and more convinced, is that "never" is a short time in politics.

This amendment deals with subsection (1) of Clause 174, which provides that a person from abroad shall not be eligible for housing assistance. My amendment seeks to provide that a British subject shall not be taken to be a person from abroad. One would have thought that that amendment might have been a tautology, but sadly at present it is not. Some of your Lordships may have noticed in the Independent a few days ago a report of the case of Mr. Hussein. Anyone who was aware of what was going on at Trent Bridge on Saturday must realise that "Hussein" (however spelt) is now a good English name. This particular Mr. Hussein is a British subject resident in Kuwait and married to a Kuwaiti by whom he has children. Mr. Hussein has been converted away from Islam. He has been found guilty of apostasy. He has been sentenced to separate from his wife and children and he faces the prospect of a death sentence.

As you might expect, British consular staff are involved in trying to procure Mr. Hussein's safety. In any normal circumstances, with any normal country with a dedication to protecting the interests of its own subjects, one would have thought that the advice given to Mr. Hussein might have been to go home to his own country where he has his own citizenship. But were Mr. Hussein do so he would not of course instantly be employed. Neither would he be able to obtain benefits because under the habitual residence test he would be found to be a person from abroad. To be found to be a person from abroad in your own country really is a peculiarly sadistic form of insult. It is entirely unnecessary, and deprives people of rights which everybody ought to have in a country somewhere. If by any misfortune one ceases to be able to enjoy those rights in one's own country, one ought to be able to enjoy them in another; but he has done nothing to justify being deprived of them in the country of his citizenship.

Mr. Hussein is not alone in this case. The British have always been a travelling people. That has been in our interest, as it has from time to time been in the interests of the other places to which we have gone. One thinks of people who may be wishing, for example, to return from Liberia, where they may have been working as doctors or teachers; but if they return destitute—maybe turned out by the burning down of their house—to their own country where they should have been able to come in safety, they find they are turned away as persons from abroad. I really do not understand why the Government do this. I beg to move.

Lord Hylton

My Lords, the noble Earl, Lord Russell, may be pleased to hear that only this morning I telephoned the Kuwaiti Embassy on behalf of Mr. Hussein, about whom he was speaking. However, as somebody who was involved, with many others, in the development of housing aid and advice in the 1960s, both before and after the creation of the body known as Shelter, I read with some encouragement the terms of Clause 168. The clause provides that every local housing authority shall secure that advice and information is available free of charge to any person in its district. The clause goes on to repeat the phrase "any person" no less than three times. Therefore, it is a source of grave disappointment to read further on in Clauses 173 and 174 that the duties in respect of both homelessness and other forms of housing assistance are being whittled away from any person in the district and are being made subject to all kinds of tests and discrimination.

I should warn the Government that if they continue to make things so difficult for local housing authorities in respect of asylum seekers and refugees it will be incumbent on them to make proper housing provision for such people. This will become a function of central government, as it has been made almost impossible for local government to deal with the question.

9 p.m.

Lord Mackay of Ardbrecknish

My Lords, in this amendment in this part of the Bill we are not talking about asylum seekers or refugees. They have been covered in other parts of the debate, and we will probably come to them later. I remind the noble Lord, Lord Hylton, that anyone who seeks asylum on his arrival in this country is eligible for benefits and to be considered under the homelessness legislation. The noble Lord refers to advice which is available to any person. Under Clause 168 the advisory services are fully open to persons from abroad to help prevent homelessness. The difference is that assistance under the homelessness legislation—which means finding a house and perhaps providing one—is not available because that must accord with, and be parallel to, the person's eligibility for housing benefit. I know that the noble Lord does not agree with the Government as to that.

I believe that as a country the United Kingdom is reasonably generous to people seeking asylum. If they claim asylum at the port of entry most assuredly the benefits system will be open to them until a decision is made one way or the other by the Home Office. As far as concerns the habitual residence test, the noble Earl and I have been over this on a number of occasions. I suspect that we will never come to agreement. Although I normally obey the rule never to say "never" in politics, I believe that in this case it can be said with some safety. The noble Earl appreciates that United Kingdom citizens along with other people from the European Union are caught by the habitual residence test simply because of the rules of the European Union. Under those rules, we cannot differentiate between our citizens and other citizens of the European Union. To devise a rule to prevent people coming here and claiming benefits to which they have little or no entitlement we have had to introduce the habitual residence test. That must cover people from abroad. It applies equally to British citizens, EU citizens and settled immigrants. The noble Earl knows that that is the position. That was designed to combat abuse of our benefits system.

Listening to the noble Earl, your Lordships may have thought that we would turn people away at the front door. That is not so. Of course they are British citizens, but if they have not been habitually resident here should they be immediately entitled to these benefits just as if they had been here all their lives? I do not believe that that should be so. The noble Earl does not agree. He believes that if such a person comes here, regardless of how tenuous his links may be to this country, as long as he is a British citizen he ought to be eligible immediately for all the benefits that those of us who have lived in this country all our lives are entitled to. That is a point of view. It does not happen to be my point of view, and I do not believe that it is the view of the majority of taxpayers. I accept that there are some taxpayers, like the noble Earl, who have no problem about it and will happily pay a great deal more in taxes to allow people from abroad—asylum seekers and probably many others—to receive these benefits.

Lord Dubs

My Lords, can the Minister say whether a person with a British passport, who is entitled to enter and live in this country but who happens to have lived abroad, is able to come to Britain as an asylum seeker?

Lord Mackay of Ardbrecknish

My Lords, that is a neat question, to which the answer is no. The simple reason—which I thought would be obvious to anybody—is that if that person holds a British passport he is allowed to stay in this country. The question is whether such a person is immediately entitled to British benefit. I do not believe that he ought to be.

Baroness Hollis of Heigham

My Lords, is the Minister saying that someone who claims asylum at the port of entry but who is not a British citizen is entitled to British benefits but that a British citizen who is under threat of persecution and applies for asylum at the port of entry, as in the case outlined by the noble Earl, Lord Russell, is not entitled to British benefits?

Lord Hylton

My Lords, I thought that we were discussing homelessness and housing assistance, not benefit.

Lord Mackay of Ardbrecknish

My Lords, I am sorry to say that we are talking about benefits because the two are tied together. If people have lots of money they will not need to be considered under the homelessness legislation. If they do not have lots of money they will need either housing benefit or the local authority to pay for them. They will need benefit from the British taxpayer or the British council tax payer one way or another.

Baroness Gardner of Parkes

My Lords, if a British citizen goes to live in Australia his pension is frozen at whatever the rate is at the time. If that person returns to this country the pension is immediately reinstated at the current rate. I know a number of people who regularly return to England in order to have their pensions upgraded. I wonder how that affects this issue. I am sorry to put a fly in the ointment in this way.

Lord Mackay of Ardbrecknish

My Lords, as my noble friend will know, if a person is entitled to a British pension he will have paid contributions while resident in the United Kingdom. The pension rules allow such an individual to come back and establish himself here, receive an upgrade of pension and then return to Australia—if he must. The pension is then frozen again. However, that is an entirely different issue. The noble Baroness may laugh but I would just like to get it on record that I presume the Labour Party will repeal the habitual residence test if it wins the election and will allow people to come here from wherever it is in the world and link themselves in to the United Kingdom benefit system—whatever that may cost the British taxpayer. I presume that is the Labour Party's policy. I certainly know it is the Liberal Democrats' policy because the noble Earl has told me on a number of occasions.

Baroness Hollis of Heigham

My Lords, the Minister asked me a question. I am delighted to see that he is practising for the position of Opposition by interrogating noble Lords on these Benches as to the implications of our policies. I am sure he will get even further practice of that in future. I simply asked him a question which he may go on to answer but I think he thought he had passed by our point. Why is it acceptable that someone coming out of a situation, as outlined by the noble Earl, Lord Russell, in Kuwait or Iran who is not a British citizen would be entitled to means-tested benefits but someone who is a British citizen coming out of the same situation of persecution would not be entitled.

Lord Mackay of Ardbrecknish

My Lords, your Lordships will have noticed that the noble Baroness evaded the question about what the Labour Party's policy would be. I presume that means that it does not have a policy. Maybe it is under review. Or perhaps there is to be a referendum on it. I must conclude that the Labour Party would be prepared to allow all the people we are excluding from benefit to have access to the benefit again. If that is the case, then, in accordance with what I will call the "Brown doctrine", savings will have to be found elsewhere in the British benefit system in order to pay benefits to people from abroad and asylum seekers, presumably, who come here saying they will not live off the British taxpayer and then, when they get here, decide to claim asylum. All that money will have to be found from elsewhere in the social security budget. I imagine that means that other British citizens will have to lose some of their benefit.

I am asked the question about British citizens. I am afraid the noble Lords opposite are becoming confused. All we are discussing with the habitual residence test is whether or not a person who is not an habitual resident here, including an EU citizen—because we must remember that they can be EU citizens as well as British citizens—has a right immediately to claim United Kingdom benefits. We say they should not have. The Opposition clearly say they should. What is the difference between a returning British citizen and an asylum seeker? The difference is that a returning British citizen is immediately entitled to go to work. He does not need to wait for the six months. There are no problems about working immediately he reaches this country. Therefore, if the gentleman from Kuwait comes here, he can use his undoubted talents to start work immediately. He is in quite a different situation from an asylum seeker who, of course, is not allowed to work until at least six months have passed in this country.

We look for a number of factors in deciding whether somebody is habitually resident: a claimant's future intentions, the reasons for his coming to the UK, his employment record, and the continuity of residence in another country. All claimants are subject to the habitual residence test when making application for benefits. It is only fair that British subjects who may have lived abroad for a great many years—and in some of the examples we have had even retain property and interests abroad—should be required to establish whether they are habitually resident here when they wish to claim assistance provided by resident British taxpayers.

As I explained to the noble Lord, Lord Hylton, earlier, local authorities normally rely on housing benefit to defray a considerable part of the costs of their homelessness duty. Nevertheless, providing assistance under the homelessness legislation still involves them in expense. Were this amendment to be passed it would prevent our aligning entitlement under the homelessness legislation with entitlement to social security benefits and could result in an even greater cost to the local authorities.

I understand the noble Earl's concern about the habitual residence test. I understand that the noble Earl is opposed to it absolutely and that he would be prepared to live with what, when this issue first came to our attention, were called "benefit tourists".

Earl Russell

My Lords, the Minister is putting words into my mouth. He knows perfectly well that, like the Social Security Advisory Committee, I believe that the actively seeking work rules are much better designed to catch those people than the test. I ask him to withdraw the remark he has just made.

Lord Mackay of Ardbrecknish

My Lords, I am sorry if I misquoted the noble Earl. I am happy to withdraw my remark. I am not entirely sure how the actively seeking work test would help in the cases that we saw last summer and the summer before that.

However, be that as it may, the position is that the habitual residence test is a clear test which must be applied to United Kingdom citizens returning here just as it must to European Union citizens and other people with settled status here. I believe that it is a perfectly sensible protection for the British taxpayer. I am sure that the majority of my fellow countrymen agree with me, although I accept that others do not. It seems to me that we should make sure that we use our benefit system and the considerable amount of money which the taxpayer entrusts to us to run that benefit system for the purpose for which it was intended; namely, to help those of our fellow citizens resident in this country who have fallen on hard times.

9.15 p.m.

Earl Russell

My Lords, I really rather enjoyed that. I am grateful for the support that I received from all sides of the House. I am grateful to the noble Lord, Lord Hylton, for giving more information about the case of Mr. Hussein. I am grateful to those on the Opposition Front Bench for their extremely useful questions about the relationship between an asylum seeker and a British person suffering under the habitual residence test.

I am grateful to the noble Baroness, Lady Gardner of Parkes, for reminding us of the problem of the Australian resident pensioners. That is a serious problem to which we must return. However, I fear that the noble Baroness was perhaps unwise to draw the Government's attention to the practice of people returning from Australia to up-rate their pensions. The Government will stop that next. If the noble Baroness wishes to join me in challenging them when they do that, I shall be happy to have her support.

Before moving the amendment, I should have declared a non-pecuniary interest because for a period of five years or more, I have twice been resident outside the United Kingdom. Therefore, if I had returned home destitute as a result of any misfortune, if it had been in place then, I would have been caught by this test. Therefore, when the Minister says that British subjects returning from abroad who are caught by this test have a very tenuous connection with this country, I find those words personally offensive and I should be grateful if the Minister would also withdraw that allegation.

As always, the Minister had a great deal to say about the taxpayer, who is, of course, not singular. Of course the interests of taxpayers need to be taken into account but the Minister's success in doing that has not been very great, in particular in relation to the people whom we are considering. If they are denied benefit, they become homeless, destitute and probably patients in a hospital where they will be a charge on public funds.

But if they are able to obtain work—and hardly anybody can do so who is sleeping rough on the street—they will become taxpayers. The Minister knows perfectly well that that is the way in which I believe the interests of the taxpayer should be served.

The Minister is right about our policy but he must not put into our mouths what he believes the consequences of that policy will be. We believe that he is very deeply mistaken in that calculation. I was very surprised by what the Minister said when he referred to the advice clause to which the noble Lord, Lord Hylton, drew attention. The Minister said that persons from abroad will be entitled to advice about how to avoid homelessness. But when they are not entitled to work and have no money—

Lord Mackay of Ardbrecknish

My Lords, the noble Earl really must not go on about not being entitled to work. If the people concerned are British citizens they will be entitled to work immediately on their return here. That is quite a different category from asylum seekers who are not British citizens.

Earl Russell

My Lords, I am grateful to the Minister. I had temporarily slipped a gear and I thank him for pulling me up.

The fact remains that even if you are entitled to work, not everybody who is so entitled is of an age and has the health which permits them to do so. The Minister will recall one particular case about which we have corresponded at very great length where that was definitely the case. Therefore, in those cases, I should be grateful to know precisely what advice those people will be given. I presume it will be the traditional Irish advice that they should not have started from here in the first place; but I do not know what else they should have done.

The noble Lord should also look very carefully at the judgment of Lord Justice Neill in the Kihara case in the Court of Appeal which drew attention to the combination of pressures that a number of people in that situation face.

Rather unwisely, I thought, in the context of previous discussions, the Minister told me that he would never agree with me about the habitual residence test. I must ask him the traditional question: what, never? There is an appropriate response; I hope he can give it. The Minister will go on about taxation. I think he is going the wrong way about it, but we shall not agree about that either, and we shall have plenty more opportunities to return to it. So, ready for the next round, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 44: Page 105, line 27, at end insert— ("( ) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.").

The noble Lord said: My Lords, in moving Amendment No. 44 I wish to speak also to Amendments Nos. 47, 48 and 49. I believe I have already explained to your Lordships—in the context of moving amendments to Clause 153 of Part VI of the Bill, dealing with those who may or may not be a qualifying person for the purpose of housing allocation—that the Government are concerned to put beyond doubt the question of the lawfulness of excluding certain classes of persons subject to immigration control from entitlement to housing assistance. I remind your Lordships that this concern arises because of the recent Court of Appeal decision which stated that the regulations which we passed at the end of January were unlawful insofar as they deny council tax benefit, housing benefit or income support benefit to asylum seekers whose claim has not been finally determined.

Amendment No. 44 is similar to Government Amendment No. 7—which I moved earlier this evening—which has already been considered under Part VI. Amendment No. 44 will make clear on the face of the Bill that persons subject to immigration control are not eligible for assistance under Part VII, and will put beyond doubt—in primary legislation—that such persons are ineligible unless otherwise prescribed by regulations. Other than clarifying the issue of the lawfulness of any exclusions from eligibility under Part VII, the practical effect of this amendment is, like Amendment No. 7, nil because the classes of person which we intend to exclude from eligibility are unchanged.

We intend that regulations should specify that the following classes of person subject to immigration control are eligible for assistance under Part VII: refugees; persons granted exceptional leave to remain, or having indefinite leave to remain; asylum seekers (and the dependants of asylum seekers) whose asylum claim has not been turned down and who either applied for asylum at the port on arrival, or applied for asylum within three months of a declaration by the Home Secretary that their country of origin has undergone an upheaval. As with regulations to prescribe persons subject to immigration control who are qualifying persons for the purpose of Part VI, we intend that regulations prescribing those who are eligible for assistance under Part VII should be made at the outset, on commencement of this Bill. I commend the amendments to the House. I beg to move.

Lord Dubs

My Lords, it is of course confusing and difficult to have so many government amendments at this stage of the Bill. I am bound to say that it has been difficult to examine these amendments in the time available, to test whether they are innocuous or whether they contain a sting. I listened hard to what the Minister said in introducing these four amendments. The difficulty is that as we have two Bills proceeding through Parliament at the same time there is some overlap. I am bound to say that had the Government kept the housing provisions either in the asylum Bill only or in the Housing Bill only, it would have been much easier than having similar groups of people covered in both Bills. That has certainly caused me confusion, but I fear it has also caused the Government confusion, and that makes it worse.

When the Minister talked about the people who would be eligible for assistance he did not mention asylum seekers who claimed asylum within three days of arrival in this country, as was established in a previous amendment. I do not wish to have too suspicious a mind about this, but I wonder whether Amendment No. 48, which seeks to remove subsection (3) of Clause 174, is intended in some way to circumvent that three-day amendment that this House accepted. It certainly could, on one construction, be seen to be doing that. I hope that is not the case because if it were I should have thought that it is not totally above board and is not the right way to take this matter further.

Regrettably, because we are dealing with the issue at Report stage and not in Committee, other than asking for leave of the House to make further interventions, it is much harder to establish the truth of the matter. That is another difficulty in having a raft of government amendments at this late stage of the Bill. I should like some assurance that nothing the Minister has said will, directly or indirectly, affect the amendment passed by this House: that asylum seekers claiming asylum within three days of arrival will have the same entitlements to benefits as those who claim asylum at the port of entry.

Earl Russell

My Lords, the noble Lord has made an extremely important point. I, too, am anxious to hear the assurance for which he asks.

Lord Hylton

My Lords, when the Minister replies will he explain to the House the meaning of the wording in Amendment No. 49, "whether another person". It does not seem plain.

Lord Monkswell

My Lords, the Minister read a list of categories of people who would be eligible. He referred again to the concept of an individual applying for asylum at the port of entry. My noble friend Lord Dubs queried whether the Government recognised that there was an amendment at Committee stage.

Perhaps I may put another category to the Minister; he may not have considered it. A rich person comes from a country where he would be subject to persecution. There are special categories or criteria by which people with large amounts of wealth can come to this country without difficulties with immigration control, and so on. The wealthy person comes to this country but loses his wealth after being resident for some time. It may be a bad Stock Exchange investment—stocks can go down as well as up. He becomes destitute in this country with no visible means of support. Would the Government entertain an application for asylum for that person even though the application was not made within three days of arriving at the point of entry?

Lord Mackay of Ardbrecknish

My Lords, as these are my amendments, I can sum up this short debate at Report stage. I do not believe that there is any problem about the procedure of the House. Therefore, I can assure the noble Lord, Lord Dubs.

I shall not pursue the noble Lord, Lord Monkswell, down his hypothetical path. I am always intrigued at the manufacture of hypothetical cases. If a rich asylum seeker comes to this country, his asylum application will be treated in the same way as anyone else's and he will clearly not be eligible for benefit on any specific count even if he applies at the port of entry. So far as I am concerned, he will not be eligible for benefit, although one never knows the view of the Opposition parties on that. I gather that they would not consider him eligible for benefit either.

Noble Lords

Oh!

Lord Mackay of Ardbrecknish

My Lords, he is an asylum seeker. I thought that asylum seekers were more deserving of benefit than anyone else.

Lord Monkswell

My Lords, with the leave of the House, I believe that the Minister has misunderstood my comments. I was talking about someone who was rich and is now destitute. What is the Government's position?

Lord Mackay of Ardbrecknish

My Lords, perhaps the noble Lord would give me a moment or two to answer. A person does not come to this country rich and in the twinkling of an eye suddenly become poor. After a few months of putting money on the wrong horse, or whatever it may be, he then ends up poor. I guess that by that time the asylum application would have been considered. If the person had been granted asylum or exceptional leave to remain and then became poor, he would be eligible for benefit. However, if he had not been granted asylum and became poor, he would be like anyone else not granted asylum: he would not be eligible for benefit. That is a pretty clear answer.

To return to more serious matters, the noble Lord, Lord Hylton, asked about "whether another person", the words in my amendment. It is simply a re-drafting amendment with no practical change in effect from the provisions drafted in Clause 174 (4). With the assurance that there is nothing underhand or devious intended, I hope that the noble Lord can be comforted.

Amendment No. 48 would remove subsection (3) of Clause 174. The subsection provides that regulations that prescribe classes of persons who are ineligible under Part VII may make reference to housing benefit legislation. While it remains our broad policy aim to align entitlement to assistance under the homelessness legislation with entitlement to housing benefit, we do not intend to make direct reference to social security legislation for the purpose of making regulations under Part VII. That is the position.

As to the three days, nothing takes away from the general principle of aligning the benefit regulations with the asylum provisions which apply at the port of arrival. I have mentioned before that we are considering what we should do about the defeat which I suffered a week ago in your Lordships' House.

On Question, amendment agreed to.

9.30 p.m.

Lord Dubs moved Amendment No. 45: Page 105, line 27, at end insert— (" ( ) Nothing in subsection (1) above shall render ineligible under this Part any claimant pursuing an appeal under the Asylum and Immigration Appeals Act 1993.").

The noble Lord said: My Lords, this amendment stands in my name and that of the noble Earl, Lord Russell, and with it I wish to speak to Amendment No. 46. I should not have tabled the amendment if I had not listened to and then read carefully the speech made by the noble Lord, Lord Mackay of Ardbrecknish, at the Report stage of the Asylum and Immigration Bill. I found his answer so unsatisfactory that I thought it appropriate, on a more limited basis, to put this amendment forward.

I wish to make two points. First, I shall deal with the point that the noble Lord made about equating benefit entitlement for asylum seekers with the same system of benefit entitlement for normal UK residents. The Minister said that, while an appeal is taking place, a UK resident does not receive benefit and the situation is similar with asylum seekers. However, the point is different; it has been made before but must be repeated. If a UK resident is held not to be entitled to a particular benefit and chooses to appeal, the appeal is based on the decision to refuse the benefit.

In the case of an asylum seeker who is turned down by the Home Office in his asylum claim, if he appeals and then has his benefit stopped, the appeal is not about entitlement to benefit but the right to asylum. Yet, if the Government have their way, the asylum seeker will lose his benefit while the appeal is going on. It is because the subject of the appeal is different that it is not straightforward and not fair to equate the two processes. It is not right to say that one is treating all people equally.

The main point of the amendment is to put right something unacceptable. If an asylum seeker does things properly and claims asylum at the point of entry or within three days—if the amendment holds, as I hope it will, in its passage through the other place—then the asylum seeker is entitled to various benefits, including homelessness accommodation. If the Home Office turns down the application, all the benefits stop unless and until the asylum seeker is successful in carrying out an appeal.

I believe I have got it right as regards financial benefits. The Government have said that a successful asylum appeal to an adjudicator or an immigration appeal tribunal will result in the asylum seeker getting back the financial benefits that he lost during that period. But as regards homelessness accommodation, that clearly is not possible. Not many asylum seekers are eligible for homelessness accommodation because they are not in the priority categories. But, as the Minister confirmed, if an asylum seeker is entitled to homelessness accommodation, as soon as the local authority is aware that the Home Office has turned down the asylum application it will have to turn him out. It need only reconsider the claim as and when the asylum seeker wins the appeal. That period between being turned down by the Home Office and having an appeal resolved can be weeks, is likely to be months, and could be years.

It is quite appalling that an individual who is deemed homeless and who, quite properly under the law, is put into homelessness accommodation by the local authority should then be made homeless from homelessness accommodation. That is absurd. I cannot believe that the Government could on a clear day, thinking about it, wish that to be the outcome. It is not comparable to loss of financial benefits. The Government are saying that that person and the family will be thrown out.

If there are children, the local authority will continue to bear the responsibility. It then has to go through the complicated process of assessing the family under local authority provisions in order to see whether it can step in and help that particular family. The process is complicated and bureaucratic. It is bound to be expensive for a local authority.

It is curious, to say the least, that the Government are telling a local authority which has housed an asylum seeker that the day after an asylum claim is turned down it has to throw the individual out while assessing, under other provisions put forward by the Government, whether to do something for the family, or at least take the children into care. I suggest that the whole procedure is likely to cost a great deal of public money—probably more than any perceived saving. It is a clumsy attempt to try to be consistent as between the policy on financial benefits and that on homelessness accommodation. It surely cannot be humane or sensible. I repeat: it cannot make any sense to turn people out of homelessness accommodation and make them homeless in the process. I beg to move.

Lord Hylton

My Lords, this is an important amendment, even though it affects only a small group of people. If the consequence of withdrawal of benefits is homelessness, that will be a very strong incentive to asylum appellants to abandon their appeal or to withdraw from it. If that happens, it will negate the whole appeal procedure which has been built up over a long period of years.

Earl Russell

My Lords, I shall not repeat what the noble Lord, Lord Dubs, said. He put the case extremely well. I shall merely refresh the point that benefit withdrawn after appeal can be backdated and repaid. You cannot repay a home after an appeal. That is a vital distinction and I am most grateful to the noble Lord for it.

I am sure the Minister will recall a speech made at Third Reading of the asylum Bill by the noble and learned Lord, Lord Ackner, in support of an amendment moved from these Benches by my noble friend Lady Williams of Crosby. The noble and learned Lord argued that the right to appeal is a fundamental judicial matter and that, by completely removing all means of support during an appeal, the Government might be thought to be frustrating the right of appeal itself. If the Minister has read the Court of Appeal judgment he will understand the reasoning behind the noble and learned Lord's thinking. It is a powerful and compelling point. The Minister will, of course, need to remember that the point of the Court of Appeal judgment was that the denial of benefits threatens the very right to seek asylum itself. I know he does not agree with that, but the question is one to be determined by the courts and not by the Government.

The amendment which was carried in this House in relation to entry will be, I believe, sufficient to protect the Government against that charge. Were they to accept the amendment of the noble Lord, Lord Dubs, they would be protected against the second plank of that charge. The Minister should remember that although Parliament can do whatever it likes, it is incumbent upon Parliament to do something before the courts can understand what it has done. If Parliament enacts a contradiction, the courts cannot be certain which part of it Parliament intends.

Lord Mackay of Ardbrecknish

My Lords, Amendment No. 45 would prevent an asylum seeker, who is pursuing an appeal under the Asylum and Immigration Appeals Act 1993 from being prescribed as ineligible for assistance under Part VII of the Bill.

The amendment goes to the heart of the steps the Government are taking to reduce the number of asylum seekers who come to this country and lodge appeals that have no real basis. I shall remind your Lordships of the figures. Only three out of 100 appeals are found to be genuine asylum seekers. The other 97 are not. Those are the figures on appeals. I have advised your noble Lords on other occasions of those figures, and I apologise for doing so again, but I think it is well worth keeping in front of us the fact that only 3 per cent. are successful on appeal. Therefore, a very large number of asylum seekers pursue an appeal once the Home Office has refused their initial claim, and they do not succeed. Of course, all the time social security benefits and assistance are being given, and to date they were considered for help under the homelessness legislation while they pursued these asylum claims.

We have been over this ground on a fair number of occasions, and this House and the other place have decided on various parts of the Asylum and Immigration Bill, which will, in fact, enact what I have been advocating for some time, and the parties opposite, of course, have been disputing for some time. Genuine asylum seekers come to this country to escape persecution and not to obtain benefit. As I have said on a number of occasions, it is as much in the interests of those who are genuinely seeking asylum, as it is in the interests of our own taxpayers to reduce the number of economic migrants currently clogging up the asylum system.

The Government are taking action to remove entitlement to benefits and to assistance under the homelessness legislation from people who enter this country on the understanding that they will support and accommodate themselves, or indeed people who come here illegally, but who then change their minds and decide to claim asylum, and then have their claims for asylum turned down by the Home Office.

I pointed out last week that since the social security regulations were introduced earlier in the year removing benefit entitlement from these groups, the number of asylum applications in March, April and May has reduced; indeed the number reduced quite dramatically in May. Excluding these groups from entitlement to assistance under the homelessness legislation is a logical extension of that policy. Moreover, it would not be acceptable to place local housing authorities under the additional, onerous, burden of having to meet the full housing costs of applicants accommodated under the homelessness legislation, who were unable to claim housing benefit.

Amendment No. 45 would undermine our policies of removing the incentive for economic migrants to come to this country and pursue unfounded claims for asylum, and, more generally, of aligning the entitlement of persons from abroad to assistance under the homelessness legislation with entitlement to housing benefit.

Earl Russell

My Lords, could the Minister tell the House how he knows the claims have been unfounded before they are heard?

Lord Mackay of Ardbrecknish

My Lords, we have been over this a great many times. Out of every 100 claims decided by the Home Office only five are granted asylum. Out of every 100 claims going to appeal only three are granted asylum. Those are the 1995 figures. The 1994 figures are somewhat similar. The position is there; it is quite clear and quite obvious. That is the evidence. I do not think one requires any more evidence. The position is perfectly clear. As I said, Amendment No. 45 would undermine our policy.

Amendment No. 46 would remove the regulation-making power which allows the Secretary of State to prescribe that certain groups of persons from abroad are not eligible for assistance. As I hope I made clear, the Government are clear that persons from abroad who do not have a valid claim to public assistance—and that includes assistance under the homelessness legislation—should not have access to it.

It is important, therefore, that there should be scope to prescribe those classes of person who are not eligible for assistance under Part VII. Our policy is that entitlement to homelessness assistance should align with entitlement to housing benefit. The groups of persons we intend to prescribe as not eligible under Part VII will be precisely those groups which are excluded from entitlement to housing benefit under social security regulations.

Amendment No. 46, like Amendment No. 45, would undermine that policy, and I cannot recommend either of the amendments to the House.

9.45 p.m.

Lord Dubs

My Lords, in his comments the Minister seemed to imply that, despite doing the right thing by applying at the port of entry, such people should still be deterred from seeking to come here. That has taken the argument several stages further than the Government's original proposition, which was to draw a distinction between those claiming asylum at the ports and those who failed to do so but claimed asylum when they had been in the country for some time.

The Minister thought that such a distinction would help the Government to control things on their terms. We on these Benches were not happy about any of that, but for the moment I accept the Government's argument. We have now taken the matter a great deal further. The Minister is now using the same type of emotional reasoning—if one can talk about emotional reasoning—or argument against those asylum seekers who have done as the Government said: they have claimed asylum at the point of entry; they have done everything properly and have had homelessness accommodation, if they were in the priority category, as only a small proportion of them would be; they are then turned down by the Home Office, maybe nine months, a year or two years later; and they then appeal.

If there is any virtue in having a system of appeals, it is to ensure that justice is done to asylum seekers. Yet the Minister says, "No, no—most people do not win their appeals and so forget about justice to those people". That is what the Minister said tonight. That is what he said in this House on 24th June during the Report stage of the Asylum and Immigration Bill. He said: Frankly, unless their case is extraordinarily strong, my advice would be that they should consider returning home".—(Official Report, 24/6/96; col. 715.) He made the point on a number of occasions.

If there is a concept of justice, it is not one that can be modified by statistics. Justice is for every single individual. It is not good enough to say that 3 per cent. win their appeal. Those 3 per cent. surely have certain basic rights. The Minister says, "We will forget about those rights; 3 per cent. is not enough to bother about and they ought to go home". That is the nub of the Government's argument. Furthermore, in quoting the 5 per cent. who obtained asylum status and the 3 per cent. who won appeals, the Minster forgot about the others—the 20 per cent. or so who obtained exceptional leave to remain.

But my key point is that if there is an appeal system, it ought not to be undermined by coercing people to leave the country and possibly face danger if they have to return to where they suffered persecution.

Finally, the Government conceded that, where there are cash benefits which are lost to asylum seekers during the period between being turned down by the Home Office and winning an appeal, those who win appeals will obtain financial recompense. Not a word has been said about recompense to people who have lost their homelessness accommodation. I should have thought that justice and equity demand that the Government do something for those people who have lost out even more badly, because in the end they will end up on the streets, compared with those people—and it is bad enough—who have lost their financial benefits. So the Government even within their own policies are inconsistent.

I do not know whether the Minister wants to comment further. Regrettably, we are now at Report stage. But I think the Government are wrong. They are behaving badly. They have not made their case. The right of appeal is a right of appeal for every single individual. The Government are seeking to undermine that right for individuals who may well have to face danger in the country from which they have fled. I think it is shameful. I think it is shabby. In the absence of any further comment from the Minister, I very reluctantly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Mackay of Ardbrecknish moved Amendments Nos. 47 to 49: Page 105, line 28, leave out second ("the") and insert ("other"). Page 105, line 31, leave out subsection (3). Page 105, line 34, leave out subsection (4) and insert— ("( ) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether another person—

1. (a) is homeless or threatened with homelessness, or
2. (b) has a priority need for accommodation.").

The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 44. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 175 [Asylum-seekers and their dependants]:

Lord Mackay of Ardbrecknish moved Amendment No. 50: Page 105, line 39, after second ("asylum-seeker") insert ("who is not by virtue of section 174 a person from abroad who is ineligible for housing assistance,").

The noble Lord said: My Lords, in moving Amendment No. 50, I shall speak also to Amendments Nos. 51 to 53. Amendments Nos. 50 and 51 are simply drafting amendments which clarify the provisions in subsection (1) of Clause 175. They do not alter the substance of the clause and, with your Lordships' agreement, I do not intend to dwell on them further.

Beyond subsection (1), the provisions in Clause 175, as drafted, largely re-state existing provisions in the Asylum and Immigration Appeals Act 1993, which provide a statutory framework for the Home Office to advise local housing authorities about the status of homeless applicants who are asylum seekers.

Under the present homelessness legislation, authorities need to know whether an applicant is an asylum seeker, as that will affect whether a duty is owed and, if so, the extent of the duty. Broadly speaking, no duty is owed to asylum seekers who have accommodation—however temporary it is—which is available to them. Where they do not have accommodation available to them and they meet the normal statutory homeless criteria—that is, they are unintentionally homeless and in priority need—the duty owed is to secure temporary accommodation pending resolution of their asylum claim.

Under the present legislation, authorities need to know when the status of asylum seekers whom they are accommodating changes: if their asylum claim fails they are no longer entitled to homelessness assistance. That will remain broadly the same, but Amendments Nos. 52 and 53 update the provisions in the Bill to reflect the revised information needs of housing authorities in the light of the new position on asylum seekers' entitlement to benefits.

Authorities will continue to need to know whether an applicant is an asylum seeker but, additionally, they will need to know the circumstances which will determine whether the applicant is eligible for assistance under Part VII—such as whether he claimed asylum on arrival. The new clause after Clause 175, which would be inserted by Amendment No. 53, will provide for that. Amendment No. 52 paves the way by deleting the associated provisions in Clause 175 which would no longer be required. I beg to move.

Lord Dubs

My Lords, again this is an amendment which we have not had time to examine in the detail in which we would have wished. However, I wish to make some comments, particularly on Amendment No. 53. I appreciate that in some respects the point of Amendment No. 53 is not totally different from the equivalent clause as already stated on the face of the Bill. Nevertheless, I should like to ask the Minister a number of questions.

First, I should like some assurance that information that goes from a local authority to the Secretary of State will not be passed on to the Home Office. I say that because it is accepted practice in this country—sometimes breached—that when government seek information for one purpose, they will not use that information for other purposes. It would be a matter of assurance to individuals if that information were not directly passed to the Home Office. There may be arguments to the contrary, but there is a point at issue there and there may be some anxieties.

Perhaps I may continue with my questions. Secondly, have the Government assessed how much work this will involve for the Home Office, the Secretary of State for the Environment and for local authorities? There is a danger that all of them will be put to a great deal of work and effort. I wonder what the implications are in that connection. Thirdly, what happens if a local authority actually passes a name to the Secretary of State for the Environment and nothing is known of that individual by the Home Office or by the Secretary of State? I find this matter quite complicated. There may well be people who the local authority suspects are asylum seekers, but it has no way of determining that and so the local authority will pass names to the Secretary of State and he will then have to make a decision. As regards my first question as to whether information will be passed to the Home Office, I suspect that the answer is that information will be passed because only that department can give the answer. I can see a rather difficult, circular argument.

Fourthly, what happens if nothing is known of the individual? There will be difficulties. The local authority may consider the case of a black person who is thought to be an asylum seeker, even though that person was born in this country and has lived with his family here for more than one generation. There may be the difficulty that an attempt is made to investigate the individual, who is British in every possible sense, having been born here, and who does not come under these provisions. That means there is the danger that there will be discrimination by local authorities who will not want to get involved in all the complexities of the matter.

Those are four questions, and I have a fifth, which applies to these amendments as it did to the others, but the Minister did not answer it. What recompense is to be given to an asylum seeker who is thrown out of homelessness accommodation for the reasons discussed in the previous short debate? What recompense is to be given if and when that asylum seeker is given refugee status or exceptional leave to remain as the result of an appeal? Surely some recompense is there by right. Will the Government make some available?

Lord Mackay of Ardbrecknish

My Lords, I suspect that the noble Lord, Lord Dubs, has picked up the clause and the amendments wrongly because the Secretary of State involved is the Home Secretary. The Secretary of State for the Environment does not come into this issue at all. The information seems to be going in the opposite way because the new clause in Amendment No. 53 states, The Secretary of State shall, at the request of a local housing authority provide the authority with such information as they may require". So the information is going the other way, from the Home Office to the local authority, after information has been requested on the person before it.

I have already mentioned on a number of occasions the code of guidance and the information that already exists for local authorities when they ask people for their details. The local authority has to ask everyone particular questions when they present themselves under the homelessness legislation. It has to be established whether they are homeless, where they have been living, how many children there are and what is the position. All these questions have to be answered. I believe that the local authorities, as I have said before, have plenty of experience to be able to decide when they may have to ask a question about immigration status. That is perfectly clear. I imagine that many people will just say, "Yes, I am an asylum seeker and I claimed at the port of entry". It will then be fairly easy for the local authority to check that information. If the applicant is not telling the truth to the local authority then the Home Office will be unable to confirm that the person is an asylum seeker who claimed asylum at the port of entry. Therefore, I do not believe there is a great problem there. These procedures have to take place already in certain cases under the 1993 Act. I do not believe that there will be any great difficulty about the information which will pass largely from the Home Office to the local authority regarding the individual under consideration. Of course, nothing may be known about a person.

As I have said, the code of guidance on the screening procedure applies to absolutely everyone. We shall discuss the code with the Commission for Racial Equality, as we did with the last code. To be honest, there is no evidence that the current procedures are not working well. I believe that that answers the points raised about the code of guidance and the information passed to the Home Office, which will largely be sufficient information to allow the Home Office to identify a person and to check whether he is who he says he is.

On the question about workload, the arrangements provided in the new clause, which is Amendment No. 53, are broadly the same as the present arrangements which are provided under the Asylum and Immigration Appeals Act 1993. Therefore, I do not believe that there will be any great increase in the workload.

The noble Lord also asked about recompense. As he knows, if somebody appeals against an asylum decision and wins that appeal, I announced a fortnight ago today—we introduced legislation last Monday to give effect to this—that that person's benefits will be backdated. On the point about recompense in relation to the homelessness legislation, that does not involve money one way or the other so there will be no recompense for that aspect. However, if somebody who has been helped by a charity wins his appeal—I have explained that only three in 100 do so—his benefit will be backdated and he will be able to pay back some of the money that he has received from the charity or whoever has helped him.

On Question, amendment agreed to.

10 p.m.

Lord Mackay of Ardbrecknish moved Amendments Nos. 51 and 52: Page 105, leave out lines 42 to 44. Page 106, line 21, leave out subsections (5) and (6).

The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 50. I beg to move.

On Question, amendments agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 53: After Clause 175, insert the following new clause—

PROVISION OF INFORMATION BY SECRETARY OF STATE

(".—(1) The Secretary of State shall, at the request of a local housing authority provide the authority with such information as they may require—

1. (a) as to whether a person is or has become an asylum-seeker, or a dependant of an asylum-seeker, and
2. (b) to enable them to determine whether such a person is eligible for assistance under this Part under section 174 (persons from abroad not eligible for housing assistance).

(2) Where that information is given otherwise than in writing, the Secretary of State shall confirm it in writing if a written request is made to him by the authority. (3) If it appears to the Secretary of State that any application, decision or other change of circumstances has affected the status of a person about whom information was previously provided by him to a local housing authority under this section, he shall inform the authority in writing of that fact, the reason for it and the date on which the previous information became inaccurate.").

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

On Question, amendment agreed to.

Clause 176 [Interim duty to accommodate in case of apparent priority need]:

Earl Ferrers moved Amendment No. 54: Page 107, line 6, leave out subsection (4).

The noble Earl said: My Lords, in moving Amendment No. 54, I should like to speak also to Amendments Nos. 57 to 59, 65 to 67 and to Amendment No. 75. These amendments seek to disapply the "alternative accommodation" provisions of Clause 185 in cases where only a minor duty is owed to households accepted as homeless. These are people who are intentionally homeless or not in priority need. The provisions are also disapplied in cases where there is a referral on the grounds of local connection.

We wish to ensure that these provisions apply only in certain limited circumstances: we do not want authorities to be required to consider whether suitable alternative accommodation is available in every single case.

We shall shortly be considering a further amendment to this clause. We are proposing to strengthen the provision so that the authority will be under a duty to provide such advice and assistance as the authority considers is reasonably required to enable the applicant to secure such accommodation. In the light of that strengthening of the duty, we do not think it right that authorities should be subjected to it in cases where it is clearly inappropriate. I beg to move.

On Question, amendment agreed to.

Clause 177 [Priority need for accommodation]:

Baroness Hamwee moved Amendment No. 55: Page 107, line 18, at end insert— (" ( ) a person who qualifies for advice and assistance under section 24 of the Children Act 1989.").

The noble Baroness said: My Lords, this amendment stands in my name and that of the noble Baroness, Lady Hollis of Heigham. It seeks to add another category of people who have a priority need for accommodation to those listed in Clause 177(1). In this case we seek to specify that young people leaving care have a priority need.

This amendment is not dissimilar to one moved in Committee by the noble Lord, Lord Northbourne. His amendment went to the issue of suitability. Section 24 of the Children Act 1989, to which I referred, places a duty on a local authority which has been looking after a child to advise, assist and befriend the child with a view to promoting his welfare once he ceases to be looked after by a local authority. It is a limited duty. A person qualifying for advice and assistance means a person within the area of the authority under 21 and one who, after reaching the age of 16, was looked after by the local authority, accommodated by and on behalf of a voluntary organisation, accommodated in a registered children's home, by a health authority, an LEA, a residential care home or privately fostered.

Most young people leave home in their early 20s. The average age for people leaving home among the general population is, I understand, 22. People leave with the support of their family, no doubt taking their washing back at weekends—we have all either done that or had it done to us—and find their feet over a period. Approximately 8,000 young people leave care before their 18th birthday. For them it is a much sharper, more sudden and clearer demarcation. Some continue to receive support from a statutory or voluntary agency to find suitable accommodation. Many will set about the task of finding a home on their own, with little or no support or chance of returning to their family. The lack of family cuts them off not only from minor things like taking the washing home, but help with rent deposits and even help with finding a place to live. Young people leaving care are, I believe, particularly vulnerable to homelessness.

At present some local authorities carry out assessments on homeless young people and may provide them with accommodation if they consider them to be vulnerable; but only just over half the local authorities regard homeless 16 and 17 year-old care leavers as vulnerable in every case. The amendment is intended to ensure that the vulnerability of young people is recognised on the face of the Bill.

At the last stage on 25th June, the noble Lord, Lord Mackay of Ardbrecknish, said (at col. 875 of Hansard) that he regarded the amendment moved by the noble Lord, Lord Northbourne, as unnecessary. He talked of the obligations of a housing authority, but the housing authority only has a duty to comply with a request from social services in this context if that does not conflict with its other duties. So if the housing authority's other duties do not include preference for care leavers then these young people will be in no better a position than anyone else. On a more practical level, people working as housing officers are rather more versed in housing law than in social services law. So I think it would be better to have an explicit duty on the face of the Bill. I do not believe that it is unnecessary; nor indeed do I believe it is a duplication. I beg to move.

Lord Hylton

My Lords, I should have liked to support this amendment when it was previously moved by my noble friend Lord Northbourne. I think it is a fact that provision for young people leaving care varies enormously across the country. Some excellent work has been done on it by such voluntary bodies as the Coram Foundation and various children's societies. Nevertheless a considerable number of young people do leave care without assistance from anybody. They are particularly vulnerable, as the noble Baroness, Lady Hamwee, has pointed out and, in my view, they are extremely likely to drift into crime, to be drawn into crime or to find themselves before the courts for one reason or another. The amendment highlights a very sensitive situation. It is a valuable proposal that should be accepted by the Government.

Earl Ferrers

My Lords, it is right that the noble Baroness should draw attention to the situation of children because they are very important. However, I am bound to tell her that I do not believe that the amendment is needed. The first reason is that children leaving care may well be determined by the local authority as vulnerable within the categories specified in subsection (1) of Clause 177 and will therefore be in priority need for accommodation. The department's homelessness code of guidance for local authorities picks up the point. It states that some groups of young people will be less able to fend for themselves than others and gives those leaving local authority care as a specific example of how the provision should be applied.

The second reason is that the Children Act itself makes provision to ensure that support will continue for young people leaving care. Apart from defining who such people are, Section 24 also requires social services authorities to advise, assist and befriend young people when they leave their care. Further, a social services authority, under Section 27 of that Act may call on the assistance of a housing authority in discharging its duty to that young person. If such a request is made the housing authority is under a duty to comply with it. There are already two statutory safety nets for children leaving care—the vulnerable category in Clause 177 of the Bill and the provisions of the Children Act 1989. I suggest that there is no need to identify them specifically on the face of the Bill.

Baroness Hamwee

My Lords, I am not sure that the provision in Clause 177 is as obvious as the Minister suggested. He refers to the vulnerable category in Clause 177(1)(c): a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason". There follows a provision which allows the Secretary of State to specify further descriptions. The Minister referred to the homelessness code of guidance. That is a code, not a statutory provision. He also referred to the section of the Children Act which requires the local authority to advise, assist and befriend. That is not a requirement to provide accommodation. I would have wished to see the direct obligation on the face of the Bill. I anticipated that the Minister would tell me that the housing authority had a duty but I am advised that the duty is to be observed if it does not conflict with other duties. For that reason, I am concerned that if the other duties do not include preference for care leavers this group of young people will not be covered.

I am not sure that we will get any further tonight. I am grateful for the support of the noble Lord, Lord Hylton. There appears to be a difference of interpretation between myself and the Government. Perhaps I should look at the matter again.

Earl Ferrers

My Lords, perhaps I may assist the noble Baroness. Clause 177(1)(c) refers to a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason". The courts have held that those other special reasons can also include young vulnerable people. So I think she will find, as far as concerns the results which have appeared in the court, that young people fall in the category to be found in Clause 177(1)(c).

Baroness Hamwee

My Lords, that is obviously helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Clause 178 [Duties to persons becoming homeless intentionally]:

Lord Mottistone moved Amendment No. 56: Page 107, line 31, after ("satisfied") insert (", after a medical examination and report if there is reason to suspect that a person may be suffering from mental illness,").

The noble Lord said: My Lords, in moving Amendment No. 56 I shall speak also to Amendments Nos 68, 69 and 72. As your Lordships will see, Amendments Nos. 56 and 68 are similar. They are designed to ensure that Clauses 178 and 183 give proper consideration to fair treatment for people who are specifically mentally ill.

Your Lordships may wonder why I picked out these particular people. As I see it, the reason for their inclusion on the face of the Bill, in addition to the point that my noble friend Lord Ferrers has just drawn to our attention in Clause 177, is that from time to time, unlike other disabled people who are not mentally ill, as well as other homeless people, people who are severely mentally ill are sometimes not responsible for what they do. I made this point to your Lordships in Committee at col. 851 on 25th June so I shall not press that point any further at this stage.

Amendment No. 69 makes a similar point—but from a slightly different point of view because of the text of the clause—in relation to Clause 184. I suggest to the Government that in the case of Amendment No. 72, which seeks to amend Amendment No. 71, the local authority should take into consideration an applicant's health including, but not by any means exclusively, mental illness. That is important for all people who are affected by Clause 185, as are characteristics and personal circumstances. It seems to me that that would be a very important further aspect which Clause 185 needs to cover.

I truly believe that these particular points need to be included in the Bill. They are very small points and I hope that my noble friend will feel that he can accept them. I beg to move.

Baroness Hollis of Heigham

My Lords, when we discussed this in Committee one of the distinctions drawn by noble Lords on these Benches was that we believed, and pressed the Minister, that somebody who suffered from mental illness or a severe learning difficulty whose actions gave rise to some concern about anti-social behaviour, may very well need to be rehoused because their behaviour may be intolerable to other tenants who may themselves be frail and elderly and have a need for quiet enjoyment. But though they may need to be rehoused in a different form of accommodation they should not be regarded as making themselves intentionally homeless, which is what these amendments address.

At the time, when we pressed the Minister on this with the help of the noble Earl, Lord Russell, he said he believed that such people would have made themselves intentionally homeless. But I believe that the Government may now be able to widen that point—I try to put it diplomatically—to suggest that there may be other considerations and it may not be the case that such people have made themselves deliberately homeless if they were not aware of the consequences, or could not appreciate the consequences, of their activities.

I repeat, that does not remove the need—not invariably but very probably—to rehouse such a person if their behaviour is intolerable to others who may be equally frail. But at least it would ensure, if that is the case, an ongoing duty of responsibility to the local authority, which is clearly appropriate in these cases.

Lord Swinfen

My Lords, I support the amendment moved by my noble friend Lord Mottistone. A number of people will be in that position because of the closure of mental hospitals and because they are no longer able to have a bed there as a result of the Government's care in the community policy. I feel that this is part of care in the community and will assist in their care. Therefore, I support the amendment.

Earl Ferrers

My Lords, this is a rather difficult area of life with which we must deal. Again, I believe that my noble friend and other noble Lords are quite right to draw attention to it because those who are mentally ill have a way of behaving which makes it difficult sometimes to assess whether their behaviour is due to their illness and they do not know what they are doing or whether they know perfectly well what they are doing and, therefore, their behaviour cannot necessarily be ascribed to their illness.

All these amendments seek to ensure that the local housing authority shall have regard to the physical or mental health of the applicant when it fulfils certain of its duties under the provisions of Part VII. In particular, the amendments would require authorities to have regard to that when considering the vexed issue of what is rather indelicately called "intentionality".

I believe that these amendments are not necessary. Your Lordships will recall that this matter was discussed in some detail in Committee when the noble Baroness, Lady Hollis, asked whether someone suffering from mental or physical ill health would be regarded as intentionally homeless if his behaviour was such as to cause the local authority to evict him. My noble friend Lord Lucas wrote to the noble Baroness on 3rd July about this matter and he copied his letter to all who spoke in the debate on Parts V and VII of the Bill. He arranged that a copy should be placed in the Library.

My noble friend made it clear that under Clause 179 a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation. The same consideration applies to becoming threatened with homelessness. The action or inaction must be deliberate and, clearly, it would be for the local housing authority to determine in each case whether a person's actions or inactions were deliberate and therefore whether the extent of the authority's duty towards the person under the homelessness legislation continued.

The homelessness code of guidance will be revised. The existing code advises that an authority should not, as a general rule, consider certain situations to be deliberate. One of those is that the authority had reason to believe that the applicant is incapable of managing his affairs—for example, as a result of old age, mental illness or handicap. The revised guidance will reiterate that point, but the assessment of whether actions or inactions are deliberate must rest with the authority and must be determined in each separate case.

The issue of vulnerability, in whatever form it comes, is, in the long term, bound to be one for the authority to determine. It would be wrong to tie down the authorities in their consideration of individual cases in the way in which my noble friend's amendments propose. Therefore, I understand my noble friend's concerns and I think that he is quite right to raise them. But in the end, the vulnerability must be a matter for the authority to determine. Therefore, the Bill as it stands covers the matters about which my noble friend is anxious.

Lord Mottistone

My Lords, I appreciate what the Minister said and that he understands why I have tabled these amendments. I thank also my noble friend Lord Lucas for sending me a copy of his letter to the noble Baroness, Lady Hollis, which took us a little further in that direction.

However, the Minister said that he thinks it is unnecessary to include this provision in the Bill. My reason for believing that it is necessary is borne out by what he went on to say, namely, that the guidance will be re-written. One always knows that guidance that is being re-written is something over which Parliament has little control. At present the guidance refers to a housing authority having reason to believe a particular circumstance is occurring. That is how I understand the matter. However, since housing authorities were set up, we have had care in the community. The noble Earl and his department have perhaps been thinking about housing and that side of local government. However, that is quite different from social services which work now with health authorities to provide assessments of people who are severely mentally ill.

My amendments, Amendments Nos. 56 and 68 state, after a medical examination and report". I rather think that that was what my noble friend considered unnecessary, because a housing authority would make its own decision. We now have a system—which is written into the law—of having assessments made of people who are mentally ill, or who are suspected of being mentally ill. Therefore, there is a source of information which can be referred to over and above an opinion which a housing authority may have. It would seem to me there is a worthwhile opportunity for my noble friend to consider returning with an amendment of his own at Third Reading to seek to take advantage of the care in the community facilities relating to the mentally ill. Those facilities would be worth referring to rather than depending rather vaguely on amendments to the guidance. I hope the House will allow my noble friend to tell me whether he would consider doing that between now and the next stage.

Earl Ferrers

My Lords, with the leave of the House, of course I shall consider what noble Lords and my noble friend have said. The important point to remember in all this is that one can, if one is not careful, cut up the legislation—if I may use that phrase without being too vulgar—with all sorts of provisions which may in the long term be undesirable. That is why one has codes of guidance. They fill in what one might describe as the loose spots. The legislation ought to give the whole picture as a generality. The code of guidance then explains how the provision should be carried out.

In the case we are discussing the code of guidance pre-dates care in the community and requires updating in the light of experience. We intend to do that by consulting the Department of Health. Therefore I believe the code of guidance constitutes the best way of approaching the matter. Of course I shall take into account what my noble friend and others said. If there is any way I think the provision ought to be altered before the next stage, I shall let my noble friend know. However, I do not wish to raise his hopes too high. I believe the provision is best kept as it is, and that the matter is addressed by the code of guidance. However, I shall certainly consider what my noble friend said.

Lord Mottistone

My Lords, I am most grateful to my noble friend the Minister for undertaking to consider the matter further. I wish to leave him with one point which I tried to make earlier; namely, there is a difference between people who are mentally ill, and other patients, in that unlike other people the supposition is not that they might be pulling a fast one under circumstances in which their mental illness is taking effect. Often when their mental illness is taking effect they can fool people into thinking that it is not; and then people get killed.

Having heard that, and hoping that my noble friend will budge a little before the next stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Earl Ferrers moved Amendment No. 57: Page 107, leave out lines 32 and 33.

The noble Earl said: I spoke to Amendments Nos. 57, 58 and 59 with Amendment No. 54. I beg to move.

On Question, amendment agreed.

Clause 180 [Duty to persons not in priority need who are not homeless intentionally]:

Earl Ferrers moved Amendments Nos. 58 and 59: Page 108, line 20, leave out subsection (1). Page 108, line 22, leave out from ("authority") to ("but") in line 24 and insert ("—

1. (a) are satisfied that an applicant is homeless and eligible for assistance, and
2. (b) are not satisfied that he became homeless intentionally,").

On Question, amendments agreed to.

Clause 181 [Duty to persons with priority need who are not homeless intentionally]:

Baroness Hollis of Heigham moved Amendment No. 60: Page 108, line 38, after ("period") insert ("unless the Secretary of State prescribes otherwise,").

The noble Baroness said: My Lords, I shall be brief. The amendment provides a way of allowing the Government to expedite what we all wish to see.

The Government expect local authorities to house the great majority of homeless families within two years. For those years local authorities have a responsibility, a duty, to ensure that there is temporary housing while those families wait. Thereafter, the local authority must review the circumstances and may extend their responsibility beyond the two years. As we rehearsed earlier today, in many parts of the country—London, the South and rural areas—homeless families will have to wait longer than two years before their time comes through. Equally, if they have special needs, and are hard to house—those who are disabled, those who require a larger property—they are also likely to have to wait for two years.

Given by definition that homeless families are entering a common waiting list—people other than homeless families will now have additional preference—it means that homeless families will be waiting longer, and are less likely to be housed within the two years.

The amendment allows the Secretary of State to review the situation: whether the majority of applicants in a local authority are housed within two years; whether there has been a build up of households in temporary accommodation; and whether this leads to unjust and unacceptable treatment of homeless people. If so, the Secretary of State can extend the minimum duty beyond the two years. I beg to move.

Earl Ferrers

My Lords, one of the central aims of our reform of the homelessness legislation is to ensure that local housing authorities are the last resort—not the first resort—for people who find themselves in a housing crisis. It is vitally important that there should be a safety net to help people who find themselves in difficulties through no fault of their own, and who are unable to resolve those difficulties without help.

The present homelessness legislation was intended to provide that. But, increasingly, it has become clear that the present statutory framework provides an incentive to some people simply to turn to their local housing authority for help without first making any effort themselves. I do not think that that is right, and I doubt whether any of your Lordships think it right either. Everybody must be expected to take some responsibility for meeting their own needs within the limits of their own capabilities.

The provisions in Part VII will ensure that local authorities must continue to provide a safety net for families and vulnerable people who have become homeless through no fault of their own. Where the authority is not satisfied that there is suitable other accommodation available, it will have a duty to secure accommodation.

When these provisions were first introduced in another place, it was proposed that this duty should last for a minimum of 12 months. But in response to representations made at that time, the minimum period was extended to two years.

In most areas I believe that that should be sufficient time for the household to be allocated a social tenancy through the housing register, if that is what they require. Let us remember that at least three-quarters of all people allocated council housing get it within that period. If not, the authority has a discretionary power in Clause 182 to continue to secure accommodation for up to a further two years, and possibly beyond if necessary.

An authority can continue to secure accommodation for a household for as long as it wishes. That is a generous provision. Two years is far longer than most people in most circumstances will need to find longer-term accommodation. There is a provision for continuing assistance, but it must be subject to periodic review. I do not see that there is justification for adding legislation to the Bill which will alter the provision. Nor do I see why it should be subjected to prescription by the Secretary of State. I hope that the noble Baroness will be content with that position which is a great improvement on what it was in the first place.

Baroness Hollis of Heigham

My Lords, occasionally one sees the size of the gulf between us. The Minister's reply was to make comments such as: "People should not get council housing if they have not taken responsibility for themselves". It is as though getting a council house is an act of dependency. Like other people in your Lordships' House, I have been involved in the provision of council housing for a quarter of a century. I find that attitude unfortunate and wrong.

Council housing is provided by citizens of a local authority for each other. The assumption seems to be that you help yourself if you go into the private rented sector and pay more for less, but that you are being dependent if you go into a council house provided by yourself, as a citizen and local taxpayer, and you are being less than upstanding and independent. I find that a serious misreading of what council housing has been about since it was first instigated under the Addison Rules.

I wish that the Government would understand what council housing has done over the generations. I will tell the Minister what it has done. It has broken the link between poverty and lousy housing for generations of people in this country. Nor has it come by courtesy of a subsidy from the taxpayer. That is another myth regularly propagated by the Government. Over the past decade, little new capital money has come into council housing, the subsidy comes not from central government to council tenants, it comes as a result of rent pooling and therefore a mutual subsidy from one tenant to another. The notion that such tenants are getting a freebie from the taxpayer is wrong.

The third point I wish to tackle in the Minister's reply is that he continually said that council housing is such a scarce resource that we must not allow permanent housing to go to the undeserving. If it is such a valuable resource, why have the Government refused to allow local authorities to add to it by allowing them to recycle their capital assets? If it is such a valuable resource, why may not local authorities multiply it and meet housing need in the way they should? If that were to happen we would not have some of the problems that we face with the Bill.

If the Government Benches refer to council housing, I hope they will recognise it for what it is: a community asset provided by the local community for its citizens through the mutual pooling of rents. That is how it is formed and run. The notion that somehow you are being a less than upstanding citizen if you seek a council house and that therefore the Government must narrow the entry to it because local authorities cannot be trusted to do so is an unfortunate and undesirable response. There is no meeting of minds on this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

Earl Ferrers moved Amendment No. 62: Page 109, line 26, after ("satisfied") insert ("that the accommodation was suitable for him and").

The noble Earl said: After that diatribe from the noble Baroness, perhaps we may turn to Amendment No. 62. It relates to concerns which were expressed during Committee by the noble Earl, Lord Russell, that under the clause an authority may be able to discharge its duty prior to the end of the two-year period required by subsection (3) with an offer, through the housing register, of unsuitable accommodation. The noble Earl said that it had been the practice of some authorities to offer unsuitable accommodation to people whom they did not want to house; the duty would end if an applicant refused the offer.

It has always been our intention to ensure that the duty may only he discharged if the accommodation offered is suitable. We have had the opportunity to consider the implications of subsection (3) further. Although it is my view that the provisions in the subsection would provide the protection which the noble Earl seeks, it is important to put the matter beyond doubt. Amendment No. 62 does so; an authority must satisfy itself that accommodation offered through the housing register is suitable before it discharges its duty. I beg to move.

Earl Russell

My Lords, I thank the noble Earl very warmly for this provision. I agree with him: I believe it does put the matter beyond doubt. I hope it will make things work a good deal better in practice, and I thank him for that.

On Question, amendment agreed to.

Clause 182 [Power exercisable after minimum period of duty under s. 181]:

Baroness Hamwee moved Amendment No. 63: Page 109, line 40, at beginning insert ("Unless the Secretary of State otherwise prescribes,").

The noble Baroness said: My Lords, in moving this amendment, I shall also speak to Amendment No. 64.

In a rather throw-away line in responding to Amendments Nos. 60 and 61 the Minister seemed to dispose of these amendments by saying that he saw no need to dispense with the review. Nevertheless, I introduce them in order to obtain a slightly longer response.

Clause 182 allows a local housing authority to continue to provide accommodation after the minimum period but only when it has carried out a review of the matters set out in Clause 182(2). This small set of amendments seeks to give the Secretary of State the power to set aside the requirement for a review.

We have heard on a number of occasions of the quite possible but almost absurd position that an authority may have to turf a family out of temporary accommodation after two years if in its view at the end of the period no other suitable accommodation is available in the district, even if the family is "nearly there" and could expect an offer of permanent accommodation quite quickly.

This amendment would allow the Secretary of State to give a local housing authority a discretion as to whether or not to secure accommodation depending on the circumstances of the individual case. I cannot see that this would lead to any danger that authorities would leave families in temporary accommodation needlessly, since such accommodation is likely to be more expensive than permanent accommodation. It would be quite irrational for an authority not to re-house a family as it reaches the head of the queue for permanent housing.

The Bill allows the Secretary of State to do a very great deal by regulation. This amendment would leave Clause 182(1) intact and gives him the possibility of allowing something not to be done, but to pass the discretion to the local housing authority. I beg to move.

10.45 p.m.

Earl Ferrers

My Lords, the provisions in Part VII will ensure that local authorities must continue to provide a safety net for families and vulnerable people who have become homeless through no fault of their own. I move with hesitation lest I stimulate the noble Baroness, Lady Hollis, into a twizzle again and she lacerates me on my understanding—or misunderstanding in her view—of the object of council houses. I will ask her to be quiescent over that.

We have already discussed, in dealing with Amendments Nos. 60 and 61, the extension of the minimum period to accommodate to two years. The authority also has a discretionary power in Clause 182 to continue to secure accommodation for up to a further two years and possibly beyond if necessary.

If the authority declines to exercise that power and if the household believes that it is still entitled to assistance, then it can make a further application. Authorities will recognise that it is not in their interests to provoke further justifiable applications in this way and will wish to think carefully about whether to continue providing accommodation.

When the authority decides to exercise its power to provide accommodation beyond the initial two-year period it must check that the household is still eligible for assistance. For example, it would have to check whether the children, who might have formed the basis of the priority need in the first place, are still part of the household. It must also satisfy itself whether other suitable accommodation is now available in the area. Those are the criteria which determine whether a household is eligible for the two year homeless duty. It is perfectly reasonable and logical that they should be the same criteria which must be satisfied before an authority can exercise its power to continue to secure accommodation.

Clause 182 allows an authority to continue to secure accommodation for a household for as long as it wishes. That is a generous provision, but it is inherent in the policy that such assistance should only be available to people who need it, and there must be reasonable periodic checks to ensure that people retain the basic entitlement to it. The review requirement in Clause 182 achieves that. I do not see any reason, or indeed any justification, for adding provisions to the Bill which would allow those fundamental provisions to be suspended.

The noble Baroness was concerned that the local authority may have to turn a family out after two years. Theoretically it could do so, but, of course, there is no point in doing so. If the household is still in priority need and there is no alternative accommodation, then there will have to be a new duty for two years if the household re-applies. Therefore, I think that is a situation which is unlikely to materialise in fact, even though in theory it might be possible.

Earl Russell

My Lords, before the Minister sits down, might I say that only the rules of order have hitherto restrained me from saying that the noble Baroness did not speak only for herself.

Earl Ferrers

My Lords, I am very grateful to the noble Earl, Lord Russell, for that. I do not think that he was restrained by any rules of order from saying so, in the same way as I do not think I was restrained by any rules from saying that I thought the noble Baroness had gone a bit far.

Baroness Hamwee

No, my Lords, the noble Baroness did not speak only for herself. It is with a little difficulty that I am not starting on my own diatribe. I think one could add, for instance, the use of housing revenue accounts by some authorities over the years, to give but one example.

The Minister says that the local housing authority must check certain things. This is circular. It "must check" only if the Bill requires that it shall check. The Minister says that this is a generous provision, as if somehow the provision of housing is a gift. He goes on to say that as a matter of fact a local housing authority probably would not find itself in the position that I have posed. The Secretary of State has so many powers to make prescription and to make regulations that I am rather sorry that the Minister is not accepting the offer of another one, simply to help matters along. However, I can see that he is not going to accept this gift from me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 64 not moved.]

Clause 183 [Duties in case of threatened homelessness]:

Earl Ferrers moved Amendment No. 65: Page 110, leave out lines 26 and 27.

The noble Earl said: My Lords, I spoke to this with Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 66: Page 110, line 33, at end insert— ("This subsection has effect subject to section 185 (duty where other suitable accommodation available).").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 67: Page 110, line 34, leave out ("This") and insert ("(2A) Subsection (2)").

On Question, amendment agreed to.

[Amendment No. 68 not moved.]

Clause 184 [Becoming threatened with homelessness intentionally]:

[Amendment No. 69 not moved.]

Clause 185 [Duty where other suitable accommodation available]:

[Amendment No. 70 not moved.]

The Deputy Speaker (Baroness Cox)

My Lords, I should point out that if Amendment No. 71 is agreed to, I cannot call Amendment No. 73 because of pre-emption.

Earl Ferrers moved Amendment No. 71: Page 111, line 36, leave out from ("case,") to end of line 38 and insert ("their duty is to provide the applicant with such advice and assistance as the authority consider is reasonably required to enable him to secure such accommodation. (3) The duty ceases if the applicant fails to take reasonable steps to secure such accommodation. (4) In deciding what advice and assistance to provide under this section, and whether the applicant has taken reasonable steps, the authority shall have regard to all the circumstances including—

1. (a) the characteristics and personal circumstances of the applicant, and
2. (b) the state of the local housing market and the type of accommodation available.

(5) For the purposes of this section accommodation shall not be regarded as available for occupation by the applicant if it is available only with assistance beyond what the authority consider is reasonable in the circumstances. (6) This section does not affect the duty of a local housing authority under section 176 (interim duty to accommodate in case of apparent priority need).").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 42. I beg to move.

[Amendment No. 72, as an amendment to Amendment No. 71, not moved.]

On Question, Amendment No. 71 agreed to.

[Amendment No. 73 not moved.]

[Amendment No. 74 not moved.]

Clause 186 [Referral of case to another local housing authority]:

Earl Ferrers moved Amendment No. 75: Page 112, line 1, leave out ("shall") and insert ("need not").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 76: Page 112, line 14, leave out from ("whom") to ("or") in line 16 and insert ("he is associated").

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

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 77: Page 112, leave out lines 20 to 22 and insert ("—

1. (a) the applicant was on a previous application made to that other authority placed (in pursuance of their functions under this Part) in accommodation in the district of the authority to whom his application is now made, and
2. (b) the previous application was within such period as may be prescribed of the present application.").

The noble Earl said: My Lords, This amendment seeks only to clarify the current wording of subsection (4) of Clause 186. It does not seek to alter the substance of the clause. I beg to move.

On Question, amendment agreed to.

Clause 190 [Right to request review of decision]:

Earl Ferrers moved Amendment No. 78: Page 114, line 21, at end insert ("or ( ) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraphs (b) to (e).").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 79, 80, 81, 82, 83 and 83A.

The House will be aware that there was considerable discussion at Committee stage of the period in which an applicant could request a review of a decision on his homelessness application. We were treated to some eloquent expositions by the noble Baroness, Lady Hamwee, and other noble Lords on the circumstances in which applicants might be unable to lodge a request within 14 days.

Amendment No. 79 would extend the time in which an applicant may request a review to 21 days. I believe that this will provide ample time for people in the circumstances envisaged by the noble Baroness, Lady Hamwee, and by other noble Lords, to request a review. As my noble friend Lord Mackay of Ardbrecknish said during Committee, it is in the interests both of applicants and local authorities to ensure a swift resolution of a homelessness application. It is in no one's interest to encourage applicants to delay putting in their appeal.

Amendment No. 80 will allow an authority, should it choose to do so, to extend the period by informing the applicant in writing. That will enable authorities to make exception in any case where they consider that an applicant may have difficulty in meeting the deadline.

Amendments Nos. 81, 82 and 83 address concerns raised by the noble Lord, Lord Dubs, during Committee stage. They create an avenue of appeal to the county court for applicants who are dissatisfied with the results of an authority's own review.

These amendments build on provisions already contained in the Bill to safeguard applicants' rights to a fair hearing. Clause 190 contains a new requirement for local authorities to establish a procedure for reviewing decisions that they have made as to the discharge of their duties. The review procedure in Clause 190 covers all the main areas in which the applicant has a substantive right.

Amendment No. 82 deals with the review procedure itself.

I am happy to go into the details of the other amendments. They mostly answer points raised by noble Lords opposite. The noble Baroness, Lady Hamwee, said in a moment of despair a short while ago that she was not going to get anything out of the Government, I hope that she realises that she has actually got something; and quite a bit. I beg to move.

Baroness Hollis of Heigham

My Lords, I have a brief query. The amendment is welcome. It confines itself to 21 days. I wonder whether we could persuade the Government to come back with an amendment including the words "or with good cause" either at Third Reading or at some later date. That would cover the cases where somebody with a physical illness or disability who may be in hospital, or somebody with a mental illness or learning difficulty who may have a problem meeting the 21-day deadline, may not fully understand the import.

The situation must be carefully watched so as to ensure that it is not a source of abuse. But perhaps the Minister will accept that in a few cases there may be good reason for not meeting the 21-day deadline. Under those circumstances the local authority should be required to receive appeals beyond the 21 days. I would have no objection to it being done through the code of guidance. Perhaps the Minister can help us on that point.

Baroness Hamwee

My Lords, I recognise something that is even more than crumbs of comfort: a genuine movement on the part of the Government. The noble Baroness is quite right. Mixing my metaphors, it would be a shame to spoil the crumb for a ha'p'orth of tar.

I tabled a manuscript amendment and perhaps I can explain it at this stage as it is an amendment to the Government's Amendment No. 83. Amendment No. 83A seeks to omit the word "may" and insert "shall"; in other words, to provide that the authority shall continue to secure accommodation during the period for an appeal if and until an appeal is brought. It is a simple but important point.

In tabling the amendment I suggest that the interim duty should continue until final determination of the matter. After all, it is the point of the right of appeal. It should not be argued—anticipating what the Government may say—that somebody may use the right of appeal to stay in accommodation. The matter is not at an end until the appeal procedure has been exhausted or the right to appeal has not been used. Perhaps the Minister can comment on that point.

Earl Russell

My Lords, in joining in the thanks, I should like to join with what the noble Baroness, Lady Hollis, said in regard to "good cause". On the CSA in 1991 I tabled an amendment almost equivalent to that suggested by the noble Baroness. It came up well past one in the morning and I did not move it. The noble and learned Lord on the Woolsack incorporated it in the Bill at the next stage as a government amendment. I have had many notable courtesies from the Government, but that one takes some beating.

Earl Ferrers

My Lords, I am more than flattered that so many noble Lords should be grateful to me—they are right to be grateful because I have gone a long way to try to help them. But there may be a moral in what the noble Earl says; that is, if he does not move some of his amendments we may accept them without his argument; if he argues them they may become less attractive. However, I am grateful to the noble Earl for that kindness.

When the noble Baroness, Lady Hollis, rose to speak and asked if we could extend the time a little longer, I wondered whether she had ever sold a horse—she would do jolly well at it. First, we put in 14 days and the noble Baroness, at Committee stage, wanted 28 days. We then thought again about it and decided that 21 days would be a good compromise, but the noble Baroness comes back with, "What about a little bit more?".

We believe 21 days is actually right, but the noble Baroness should not get too excited. If the noble Baroness would like to address her mind to Amendment No. 80, she will see that it says, or such longer period as the authority may in writing allow". That covers her point, which is that it should be 21 days or longer, under those circumstances.

The noble Baroness, Lady Hamwee, mentioned her Amendment No. 83A. That seeks to change the power to provide accommodation into a duty. That would place a more onerous requirement on an authority than exists under the present legislation or than is provided for in Clause 176 when the authority carries out a review of its own. I do not believe that we want that. I hope that the noble Baroness will agree that that might be going, to use a colloquialism, over the top. I am grateful to her for putting down that amendment and for making us look at the matter again, but the Bill is better without the amendment.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 79 to 82: Page 114, line 24, leave out ("14") and insert ("21"). Page 114, line 26, at end insert ("or such longer period as the authority may in writing allow"). Page 114, line 28, leave out from ("decision") to end of line 41. After Clause 190, insert the following new clause—

PROCEDURE ON A REVIEW

(".—(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 190. 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 applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review. (4) If the decision is—

1. (a) to confirm the original decision on any issue against the interests of the applicant, or
2. (b) to confirm a previous decision—
1. (i) to notify another authority under section 186 (referral of cases, or
2. (ii) that the conditions are met for the referral of his case,

they shall also notify him of the reasons for the decision. (5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section (Right of appeal to county court on point of law). (6) Notice of the decision shall not be treated as given unless and until subsection (5), and where applicable subsection (4), is complied with. (7) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision. (8) 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 or on his behalf.").

The noble Earl said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 83: After Clause 190, insert the following new clause—

RIGHT OF APPEAL TO COUNTY COURT ON POINT OF LAW

(".—(1) If an applicant who has requested a review under section 190—

1. (a) is dissatisfied with the decision on the review, or
2. (b) is not notified of the decision on the review within the time prescribed under section (Procedure in connection with review),

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.

(4) Where the authority were under a duty to the applicant under section 176 (interim duty to accommodate in case of apparent priority need), they may continue to secure that accommodation is available for the applicant's occupation—

1. (a) during the period for appealing under this section against the authority's decision, and
2. (b) if an appeal is brought, until the appeal (and any further appeal) is finally determined.").

[Amendment No. 83A, as a manuscript amendment to Amendment No. 83, not moved.]

On Question, Amendment No. 83 agreed to.

Earl Ferrers moved Amendment No. 84: Before Clause 191, insert the following new clause—

DISCHARGE OF FUNCTIONS: INTRODUCTORY

(".—(1) The following sections have effect in relation to the discharge by a local housing authority of their functions under this Part to secure that accommodation is available for the occupation of a person—

section 191 (general provisions),

section (Discharge of functions: provision of accommodation by the authority) (provision of accommodation by authority),

section (Discharge of functions: out of area placements) (out-of-area placements),

section (Discharge of functions: arrangements with registered social landlord) (arrangements with registered social landlord).

(2) In those sections those functions are referred to as the authority's "housing functions under this Part".").

The noble Earl said: My Lords, in moving this amendment I shall speak at the same time to Amendments Nos. 85 to 87. Amendments Nos. 87A, 88 and 88A will also come within its purview, as will Amendments Nos. 89, 90, 100 and 252. All these amendments relate to the discharge of functions by local housing authorities under Part VII.

Clause 191 contains a number of important provisions which govern the way in which authorities may carry out their duties. They make clear, for example, that an authority may provide accommodation itself or it may secure accommodation from somebody else. It also provides that if an authority uses its own stock to rehouse somebody, then it may only do so for two years in every three. The exception is where the accommodation is a hostel or is leased. The clause also allows an authority to make a reasonable charge for the accommodation which it provides. In many cases that will be met in part or in full by housing benefit.

A number of noble Lords voiced their concern during Committee stage that the provisions in Clause 191 did not give local authorities sufficient flexibility to discharge their duties. In particular, concern was expressed about the two years in three years provision. Amendments Nos. 84 and 85 are paving amendments. They broaden the scope of the supplementary provisions in Part VII by giving effect to the new clauses inserted by Amendments Nos. 87, 89 and 90.

Before I turn to Amendments Nos. 86 and 87, perhaps I may remind your Lordships of the purpose of the two years in three years provision in Clause 191. They enable an authority to use its own long-term stock for providing accommodation for no more than two years. Thereafter it may not accommodate the same household in such stock until the elapse of a further year. The aim of the two years in three years provision is to preserve the principle of a single route into long-term social housing. Some authorities may want to set aside part of their housing stock for short-term use in the discharge of their homelessness duties. That is entirely reasonable. But it would not be reasonable for an authority to accommodate someone indefinitely in its own stock on this basis. It would create a back-door route into long-term social housing, which would be grossly unfair on people on the housing register.

Some noble Lords, including the noble Baroness, Lady Hollis, expressed concern in Committee that the provision may cause hardship in some cases. We have listened sympathetically to the arguments put to us by the noble Baroness and others. We have made clear our willingness to consider alternative propositions, provided these met our objective of ensuring a single route into social housing.

Amendments Nos. 86 and 87 address the concerns expressed by the noble Baroness and other noble Lords. They replace the provisions in Clause 191 with a new set of provisions. The new provisions contain a direction-making power to enable the Secretary of State to waive the provisions where an authority would otherwise be unable reasonably to discharge its duties under this part. The waiver would apply to specified types of applicant—for example, large families or people requiring specially adapted housing—and may last for up to a year. This would have the effect of extending the two years in three provision to a three years in four provision. If an authority wishes to extend the period further, it must apply for a new direction, and demonstrate that it still needs the flexibility that a direction would allow.

The waiver may be subject to a number of conditions. These may require the authority to review its priorities or its allocation scheme to ensure that the problem did not recur. It is our belief that, wherever possible, authorities should address long-term needs through the housing register.

Amendments Nos. 87, 87A, 88 and 88A seek to remove limitations set on the use of the direction-making power. Amendment No. 87A, which stands in the name of the noble Baroness, Lady Hamwee, would allow the power to be used even where an authority could otherwise be able reasonably to discharge its housing functions.

Amendment No. 88, in the name of the noble Baroness, Lady Hollis, seeks to extend the period during which a direction may apply and to remove the Secretary of State's powers to impose conditions.

Amendment No. 88A, in the name of the noble Baroness, Lady Hamwee, would allow the provisions limiting the effect of the direction to be waived.

I hope that your Lordships will agree that my amendments substantially meet the concerns expressed at earlier stages by your Lordships. I beg to move.

Baroness Hamwee

My Lords, yes indeed, but I am never content to let the matter rest there. The noble Earl referred to my manuscript amendment, to which I should like to speak so that we may explore the point a little further. I should perhaps say now that I shall not be moving Amendment No. 88A. Amendment No. 87A seeks to amend subsection (4) of the new clause set out in Amendment No. 87 and to add at the end of that subsection: or if it appears to him that notwithstanding such exclusion or modification the authority will be able reasonably to discharge their housing functions under this Part". Perhaps I may put it a little more simply. If an authority can discharge its functions even if it uses ordinary accommodation—in other words, stock other than hostel or short-life accommodation—it should be able to do so. I do not believe that my amendment threatens what the Government are attempting to do, and although the Minister dismissed the point, I hope that it warrants a little consideration.

Baroness Hollis of Heigham

My Lords, perhaps I may move Amendment No. 88 and speak to the others in the group, including the substantive amendment, Amendment No. 87. I should like to explain that when we pressed this in Committee and talked about the two in three-year rule, what we were not seeking to do was to have a short-cut, in the phrase the Minister used again tonight, into "long-term housing". Certainly from my own knowledge, local authorities who use their own stock as temporary housing use hard-to-let housing, which is unattractive and very often unacceptable to those on the waiting list. Homeless families going into that hard-to-let housing are not in competition with families on the waiting list.

There may be exceptions to that, but that is generally done. I hope that the Minister accepts it from us so that there are no more suggestions that we are somehow trying to subvert the Bill, make short-cuts, queue-jump and the rest of it: we are not. We are saying that, where there is hard-to-let housing, local authorities choose to use it in such cases, possibly because there is a shortage of private rented housing. Those people who are allocated such housing should not come within the two in three-year rule. They are not in competition with those seeking permanent housing from the waiting list.

However, it is indeed true that we welcome the Government's modest concession, following the debates that we have had. We on these Benches are pleased that the Government recognised that there was a black hole, so to speak, for a few—I hope only a few—hard-to-house families. It means, in other words, that the local authorities will no longer be required to evict from their own temporary housing a hard-to-house family which has not yet come to the top of the queue in two years.

There are a couple of points which I hope that the Minister will be able to answer. The first concerns the working of the extension by one year. The Minister has said that it could be three years out of four, or four years out of five: in other words, each and every extension would have to be negotiated with the Secretary of State. We are grateful to the Minister for having made the position clear. However, I should like to ask the Minister why he is binding himself in primary legislation so unnecessarily. Our amendment would remove subsection (5). I would actually be happy with a more modest amendment, to which we might return on Third Reading: to leave out the words, which shall not exclude one year. In other words, it means that the Secretary of State, whether he wants to or not, has to limit the local authority's use of this for one year, except where it may be extended by his express consent for a further year. I can understand why the Secretary of State may wish to limit local authorities in what they can do by saying, for such period as the Secretary of State may determine but I do not understand why he has to bind himself in primary legislation. I have been puzzling over this amendment for some time, but of course we are dealing tonight with some 80 government amendments out of the 122 tabled and it is actually quite difficult to be sure that we understand all the ramifications.

It seems to me, if I understand it correctly, that the regional office will have to consider each and every case, each and every family and examine each and every case file before permitting local authorities to house that family for an additional year in their own hard-to-let housing. Really? Let me put some figures to the Minister. I could be wrong, but somewhere between 10 per cent. and 20 per cent. of homeless families will not come to the head of the waiting list in two years: 60 per cent. of those are likely to be in London and they are not usually housed in the local authority's own stock, simply because the pressure in London is so much greater than outside. But outside London for the 40 per cent. most local authorities will use their own hard-to-let housing as temporary accommodation for homeless families apart from bed and breakfast accommodation. I calculate that between 5,000 and 10,000 individual families—it may be the lower figure—will need to have an exemption offered to them by the local authority, if it is thought reasonable. To get that exemption the local authority will have to seek consent from the Secretary of State. The Secretary of State—or the regional DoE officers—will have to assess between 5,000 to 10,000 case histories a year in addition to the normal workload. They will become assistant housing managers.

Is this a sensible use of officer time at regional DoE headquarters? How do the Government expect to find efficiency savings if they throw 5,000-plus extra cases each and every year at the DoE? There may be up to 1,000 at each regional office. Are the regional offices so overstaffed that they can absorb that work without difficulty? Where will the Government find efficiency savings? It is daft to ask regional officers, acting as untrained surrogate assistant housing managers, without the necessary skills and qualifications and possibly all the case notes before them, to do this on a case-by-case basis for up to 10,000 homeless families each and every year. It is an absurd waste of highly trained expensive official time. These officers will be doing something for which they are not qualified.

I believe that what is required is either the amendment that was narrowly defeated in this House, which would leave the matter to local authority discretion, or the ability of individual local authorities to make application to the Secretary of State in the light of local circumstances for a general dispensation. If a local authority has a general problem it needs a general dispensation. That should be granted by the Secretary of State. He should not bind himself in primary legislation by limiting that discretion to one year only. We wonder whether the Government understand the caseload implication of the amendment as it stands, unless there are category exemptions as opposed to individual case history exemptions. The workload is more than that which is dealt with by two or three average local authorities in a year.

11.15 p.m.

Baroness Gardner of Parkes

My Lords, I speak to Amendment No.87, which I welcome. There does not appear to be much commonsense in putting someone out of a hard-to-let property which is not needed by anyone else. It is not desirable to move people unnecessarily from such a property. I strongly support the Government's view that there should not be yet another way to enable people to jump the queue by a loophole of this kind. I and other noble Lords feel strongly about this. No doubt the Minister will say whether or not the words of the amendment mean exactly what I believe they mean.

I believe that the amendment will address inner city areas, particularly in London, about which I have spoken. As I understand it, there would be no question of the Government or any person having to act as a surrogate housing officer to deal with individual cases. I agree that that would be impossible. I imagine it is intended that local authorities will apply for an exemption—the word "dispensation" has been used by the noble Baroness—either for a category of person or a particular hard-to-let area of accommodation. There would be ways of simplifying the situation rather than having to deal with the 5,000 or 10,000 cases to which reference has been made. It is interesting that when we debated this matter earlier the tiny number of cases then referred to has suddenly grown enormously tonight. When I spoke against the amendment moved by the noble Baroness, which was so narrowly defeated, certainly there was no mention of 5,000 to 10,000 cases. But tonight it seems that that figure suits her and therefore it has come back again. However, I welcome the fact that the two years could become three years in really necessary cases and cases where the accommodation would otherwise be surplus and perhaps unused by anyone. Also, my noble friend the Minister did say that the authority could apply for even further time beyond the three years. That shows great flexibility and sensitivity whatever the situation may be. I support Amendment No. 87.

Earl Ferrers

My Lords, I am grateful to my noble friend Lady Gardner of Parkes for supporting Amendment No.87. I am glad also that I was able to clear up some concerns of the noble Baroness, Lady Hollis, about whether we could have three years out of four, or four years out of five. I am glad that she understands that. The noble Baroness asked why we bind ourselves in primary legislation. The purpose of primary legislation is, of course, to set the direction of a policy and not to give the Secretary of State unfettered discretion. Indeed, I do not think that that is what the noble Earl, Lord Russell, wants either.

The noble Baroness, Lady Hollis, said that the regional office would have to handle every case. She referred to 5,000 or 10,000 cases and said we must be "absolutely daft" to introduce such legislation. I quite agree; we would be absolutely daft if we had introduced such legislation. I can assure her that we have not. Perhaps I can explain why.

Most local authorities will not need to apply for the extension. If they do, they will apply en bloc for a class of family, not for individual cases. As an example, one might say that they had run out of houses for families requiring four bedrooms. It is those categories that would be applied for. They would be applied for en bloc, not in individual cases.

The direction will therefore apply to categories of household type, where necessary. I remind the noble Baroness of what I said earlier. The waiver would apply to specified types of applicant; for example, large families or people requiring specially adapted housing. It might last for up to a year and would have the effect of extending the two years in three provision to a three years in four provision. If an authority wished to extend the period further it would have to apply for a new direction and demonstrate that it still needed the flexibility which a direction would allow. That would refer, as I say, to classes of housing as opposed to individuals.

I turn to the manuscript amendment of the noble Baroness, Lady Hamwee. As I explained earlier, local authorities should seek to use their older stock, wherever possible, for meeting long-term needs. We believe such needs are most effectively addressed through the housing register. There should be no need for an authority to use its own stock to house people under the provisions of Part VII for long periods. If their needs are of a long-term nature, these should be reflected by their position on the housing register. If an authority consistently finds that people whom it has rehoused in its own stock under the homelessness duty are still there after two years, this could be because it has set aside too much of its stock for short-term use, because it has framed its allocation scheme incorrectly or because it has failed to plan for needs of certain types of household in its housing strategy.

Only if these circumstances do not apply—where, for example, there is a shortage of a particular type of property such as housing with four or more bedrooms—will a direction be appropriate. We believe that the direction-making power should only be used in limited circumstances; for example, in the case of applicants requiring specially adapted housing where an authority would otherwise be unable to carry out its duties effectively. We think that it should be regarded as a temporary measure, subject to annual review, to deal with the circumstances which happen to prevail at the time. It is not intended to provide a general or a continuing exception.

I refer also to Amendment No. 89, which strengthens the provisions governing out-of-area placements. Clause 191 allows authorities to secure accommodation for homeless applicants outside their district should they so wish. We should prefer to see authorities placing people within their own areas but we accept that there are circumstances in which that may not be possible. Therefore, we do not wish to prohibit an authority from securing accommodation for applicants outside its area.

Amendment No. 90 replaces the provisions in Schedule 15 relating to the type of tenancy which may be offered under the new duty. Under Schedule 15, if a registered social landlord offers to provide housing for someone in discharge of an authority's duties under this part, the tenancy will not be assured. My right honourable friend the Minister responsible for housing indicated that it was our intention to reconsider that provision, and Amendment No. 90 provides that, generally, landlords may provide assured tenancies for people being assisted with accommodation under this part.

I hope that I have been able to allay some of the fears of the noble Baroness, Lady Hollis. Even though I have not been able to agree with the manuscript amendment tabled by the noble Baroness, Lady Hamwee, I hope that she will understand the reasons why we think that it would not be suitable.

On Question, amendment agreed to.

Clause 191 [Discharge of functions by local housing authorities]:

Earl Ferrers moved Amendment No. 85: Page 114, line 43, leave out from beginning to end of line 1 on page 115 and insert— ("( ) A local housing authority may discharge their housing functions under this Part only in the following ways-").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 86: Page 115, line 8, leave out subsections (3) to (5).

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 87: After Clause 191, insert the following new clause—

DISCHARGE OF FUNCTIONS: PROVISION OF ACCOMMODATION BY THE AUTHORITY

(".—(1) A local housing authority shall not under section 191(1)(a) discharge their housing functions under this Part by providing accommodation other than—

1. (a) accommodation in a hostel within the meaning of section 622 of the Housing Act 1985, or
2. (b) accommodation leased to the authority as mentioned in subsection (2) below,

for more than two years (continuously or in aggregate) in any period of three years. This applies irrespective of the number of applications for accommodation or assistance in obtaining accommodation made by the person concerned. (2) The accommodation referred to in subsection (1)(b) is accommodation—

1. (a) leased to the authority with vacant possession for use as temporary housing accommodation on terms which include provision for the lessor to obtain vacant possession from the authority on the expiry of a specified period or when required by the lessor,
2. (b) the lessor of which is not an authority or body within section 80(1) of the Housing Act 1985 (the landlord condition for secure tenancies), and
3. (c) in which the authority have no interest other than under the lease in question or as a mortgagee.

(3) The authority shall not discharge such functions in relation to a person who—

1. (a) normally resides with another person as a member of his family, or
140
2. (b) might reasonably be expected to reside with another person as a member of his family,

in such a way that subsection (1) would be contravened if the functions were discharged in relation to that other person. (4) The Secretary of State may, on the application of a local housing authority, by direction exclude or modify the operation of subsection (1) in relation to that authority if it appears to him that the authority will not otherwise be able reasonably to discharge their housing functions under this Part. (5) Any such direction shall have effect only—

1. (a) with respect to applicants of a description specified in the direction, and
2. (b) for a period specified in the direction, which shall not exceed one year,

and may be expressed to have effect subject to any conditions specified in the direction. (6) Where the Secretary of State gives or has given a direction under subsection (4), he may give the authority such directions as he considers appropriate as to the discharge of their housing functions under this Part in cases affected by the direction having or ceasing to have effect.").

The noble Earl said: My Lords, I beg to move.

[Amendments Nos. 87A to 88A, as amendments to Amendment No. 87, not moved.]

On Question, Amendment No. 87 agreed to.

Earl Ferrers moved Amendment No. 89: After Clause 191, insert the following new clause—

DISCHARGE OF FUNCTIONS: OUT-OF-AREA PLACEMENTS

(".—(1) So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district. (2) If they secure that accommodation is available for the occupation of the applicant outside their district, they shall give notice to the local housing authority in whose district the accommodation is situated. (3) The notice shall state—

1. (a) the name of the applicant,
2. (b) the number and description of other persons who normally reside with him as a member of his family or might reasonably be expected to reside with him as a member of his family,
3. (c) the address of the accommodation,
4. (d) the date on which the accommodation was made available to him, and
5. (e) which function under this Part the authority was discharging in securing that the accommodation is available for his occupation.

(4) The notice must be in writing, and must be given before the end of the period of 14 days beginning with the day on which the accommodation was made available to the applicant.").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 90: After Clause 191, insert the following new clause—

DISCHARGE OF FUNCTIONS: ARRANGEMENTS WITH REGISTERED SOCIAL LANDLORD

(".—(1) This section applies where in pursuance of any of their housing functions under this Part a local housing authority make arrangements with a registered social landlord to provide accommodation. (2) The tenancy granted in pursuance of the arrangements to a person specified by the authority cannot be an assured tenancy unless it is an assured shorthold tenancy. (3) The registered social landlord cannot convert an assured shorthold tenancy granted in pursuance of the arrangements into an assured tenancy which is not an assured shorthold tenancy unless the accommodation is allocated to the tenant under Part VI (allocation of housing).").

On Question, amendment agreed to.

Clause 192 [Suitability of accommodation]:

Baroness Hamwee moved Amendment No. 91: Page 115, line 43, after ("to") insert ("whether any convictions under section 1 of the Protection from Eviction Act 1977 have been recorded and to").

The noble Baroness said: My Lords, this amendment deals again with the issue of suitability and would have the effect of requiring local housing authorities to satisfy themselves, when they consider whether private rented accommodation is suitable, that the landlord and the landlord's managing agent do not have a record of offences for harassment or illegal eviction under the Protection from Eviction Act 1977. They would have to consult their records, their legal departments and tenancy relations officers about the record or lack of record of the landlord.

We have discussed suitability in terms of the physical provision of the accommodation in question. This amendment addresses the management of the accommodation. It is perhaps rather late to go into great detail, but I ask your Lordships to exercise some imagination to understand that some landlords—and I do not begin to suggest that all landlords are bad—can harass tenants in quite imaginative ways. For example, they may pay constant visits without warning at unsocial hours; offer money to tenants to get out; make threats—that is an obvious strategy; allow the property to get into a state of such disrepair that it is dangerous to stay there; cut off services; start building works and leave them unfinished—that must be a particularly distressing form of harassment—or harass tenants because of their age, sex or sexual orientation. In 1990 the Office of Population Censuses and Surveys found that 9 per cent. of private tenants could have experienced some form of harassment or attempted illegal eviction.

Having read of a number of examples of harassment, one in particular reminded me of how tenants might have felt. A tenant returned to her property and found the agent had let himself in and was using her vacuum cleaner to hoover up. She did not think agents were allowed to enter a tenant's house without asking. When I was a student I rented a flat. I recall the landlord letting himself in, repainting the kitchen and painting round the towel that was hanging on the back of the kitchen door. I would not have classed that as harassment, but I felt affronted by it. That is perhaps a minor example of the breed. I may joke about that, but the issue is a serious one. I beg to move.

11.30 p.m.

Earl Ferrers

My Lords, the noble Baroness stimulates our imaginations by referring to her former landlord painting her kitchen door with her towel still hanging on it. I thought that showed a great deal of prudent landlord behaviour in accepting his responsibility to make sure the flat of the noble Baroness was kept in a clean and proper condition. The noble Baroness has asked us to exercise our imaginations as regards the amendment. Normally I regard my imagination as rather like that of a fossilised potato chip, but to exercise my imagination at this hour of the day will be a struggle, but I shall do the best I can.

Clause 192 sets out matters which must be taken into account by an authority in determining whether accommodation is suitable for use in the discharge of its functions under this part. My noble friend Lord Mackay of Ardbrecknish spoke at considerable length during Committee stage about what the clause does. I do not say that in a derogatory way as it was important that he spoke at considerable length. Broadly speaking, Clause 192 re-enacts provisions contained in Section 69 of the Housing Act 1985. Section 69, which we introduced in order to strengthen the homelessness provisions, requires authorities to have regard to the parts of that Act which deal with slum clearance, overcrowding and houses in multiple occupation. In addition, we are taking new order-making powers which will allow the Secretary of State to specify circumstances in which accommodation is or is not to be regarded as suitable for someone; and matters which are to be taken into account or disregarded in determining whether accommodation is suitable for someone. These powers will provide an important safeguard for homeless people.

The amendment of the noble Baroness, Lady Hamwee, would require an authority to have regard to whether the landlord has been convicted of harassment or illegal eviction under the Protection from Eviction Act 1977. I would be the last to underestimate the distress that harassment or illegal eviction must cause to tenants who are subjected to it, but it is important, in considering the noble Baroness's proposals, to put the problem in its proper context. The Survey of English Housing reports that the vast majority of tenants say they are on good terms with their landlords. Only a small minority of landlords are likely to harass their tenants or take illegal action to get them to move, or paint kitchens while their tenants' towels are hanging on the towel rail.

The proper disclosure of relevant information about convictions is a matter which the Government take seriously. However, there would be serious practical difficulties in putting into practice the proposal envisaged by the noble Baroness. The police are responsible for carrying out criminal record checks and they are already hard pressed to meet the existing demand for checks within the constraints of the resources available to them. If we were to accept this proposal, it would further increase the pressure on the police.

As the House will be aware, the Government recently published a White Paper on the disclosure of information from criminal records for employment and related purposes. I believe that provisions on disclosure in the circumstances described by the noble Baroness might best be considered in the context of the proposals that my right honourable friend the Secretary of State for Home Affairs will be bringing before Parliament at a later date.

For those reasons, I hope that the noble Baroness will understand why I find it difficult to advise the House to accept her amendment.

Baroness Hamwee

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No. 92 not moved.]

Baroness Hamwee moved Amendment No. 93: Page 115, line 44, at end insert— ("( ) In particular, the authority shall not consider accommodation in a house in multiple occupation suitable for a person unless the house is registered under a registration scheme, as provided for in Part XI of the Housing Act 1985.").

The noble Baroness said: My Lords, Amendment No. 93 amends Clause 192 as regards the question of suitability. It proposes that an authority shall not consider accommodation in a house in multiple occupation to be suitable unless it is registered under a registration scheme.

It will remain within every local authority's discretion whether or not to make a registration scheme for HMOs in its area. The amendment requires certain conditions to be met before such registration. Therefore one would hope to set a minimum standard.

I anticipate that the Minister may say that the Bill makes registration schemes a matter for discretion. Perhaps I may use the amendment to ask him what guidance the Secretary of State will be giving in the order provided for under Clause 192 in respect of houses in multiple occupation. I imagine that the Secretary of State has it in mind to give specific guidance. Unless he outlaws the use of HMOs for homeless households, in particular families with children, then by definition he will consider such accommodation suitable. I have reservations about whether HMOs are suitable. Therefore the use and content of guidance concern me. I beg to move.

Earl Ferrers

My Lords, as your Lordships know, Part II of the Bill contains a package of provisions designed to achieve a marked improvement in the condition of houses in multiple occupation. The package contains a number of separate provisions. There has been considerable debate in your Lordships' House and in another place about whether local authorities should be required to introduce a registration or licensing scheme to cover all houses in multiple occupation.

The Government's view is that local authorities are being given a wide range of powers to enforce standards in houses in multiple occupation and that they should retain a discretion about whether or not to introduce a registration scheme.

I believe that the provisions in Part II of the Bill will bring about a substantial improvement in the standard of houses in multiple occupation. The noble Baroness's amendment is therefore unnecessary. I also think that it would be inappropriate to impose the type of restrictions envisaged by the noble Baroness's amendment on the discharge of an authority's homelessness functions. This could limit the amount of accommodation available—much of it perfectly adequate—which authorities would be able to use in the discharge of their functions.

The general guidance on suitability will apply to houses in multiple occupation in the same way as it applies to all other types of occupation which an authority may use to discharge its duty. The guidance will stress the need for accommodation to be suitable. Houses in multiple occupation cover a range of properties, some poor, but many quite good.

We are taking order-making powers to enable us to specify the term "suitable" and will not hesitate to use the power, if necessary, to safeguard the rights of people who are accepted as homeless. With that explanation, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Hamwee

There is some circularity in that. I shall read what the Minister said, but his point was: HMOs will be suitable if they are suitable. That is what it amounted to and I am not sure that it took us any further. In putting down the amendment, I suggest to the House that HMOs tend not to be suitable or are more likely than other forms of accommodation to be unsuitable. However, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 193 [Protection of property of homeless persons and persons threatened with homelessness]:

Earl Ferrers moved Amendment No. 94: Page 116, line 19, leave out subsection (4).

The noble Earl said: In moving this amendment I wish also to speak to Amendments Nos. 95, 96 and 97. They all introduce a new provision which will enable the individual to have a say in where his property is moved. The new provision fulfils a commitment given by my right honourable friend the Minister for Housing in another place to accept the substance of an amendment tabled by the honourable Member for Sheffield Attercliffe, but to reconsider the drafting so that the local authority is not left with an undefinable liability which would be difficult to discharge. I believe that we have achieved that.

The redrafting of Clause 193 and the insertion of the new clause combine to clarify the position and also to insert an important new provision. As amended, the clauses allow a local authority to deal with any personal property of an applicant in any way which is reasonably necessary, in particular by storing it or arranging for its storage. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 95 and 96: Page 116, line 33, leave out subsections (6) to (8). Page 117, line 9, at end insert— ("( ) Section (Protection of property: supplementary provisions) contains provisions supplementing this section.").

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 97: After Clause 193, insert the following new clause—

PROTECTION OF PROPERTY: SUPPLEMENTARY PROVISIONS

(".—(1) The authority may for the purposes of section 193 (protection of property of homeless persons or persons threatened with homelessness)—

1. (a) enter, at all reasonable times, any premises which are the usual place of residence of the applicant or which were his last usual place of residence, and
2. (b) deal with any personal property of his in any way which is reasonably necessary, in particular by storing it or arranging for its storage.

(2) Where the applicant asks the authority to move his property to a particular location nominated by him, the authority—

1. (a) may, if it appears to them that his request is reasonable, discharge their responsibilities under section 193 by doing as he asks, and
2. (b) having done so, have no further duty or power to take action under that section in relation to that property.

If such a request is made, the authority shall before complying with it inform the applicant of the consequence of their doing so. (3) If no such request is made (or, if made, is not acted upon) the authority cease to have any duty or power to take action under section 193 when, in their opinion, there is no longer any reason to believe that there is a danger of loss of or damage to a person's personal property by reason of his inability to protect it or deal with it. But property stored by virtue of their having taken such action may be kept in store and any conditions upon which it was taken into store continue to have effect, with any necessary modifications. (4) Where the authority—

1. (a) cease to be subject to a duty to take action under section 193 in respect of an applicant's property, or
2. (b) cease to have power to take such action, having previously taken such action,

they shall notify the applicant of that fact and of the reason for it. (5) The notification shall be given to the applicant—

1. (a) by delivering it to him, or
2. (b) by leaving it, or sending it to him, at his last known address.

(6) References in this section to personal property of the applicant include personal property of any person who might reasonably be expected to reside with him.").

On Question, amendment agreed to.

Clause 194 [Co-operation between relevant housing authorities and bodies]:

Baroness Hollis of Heigham moved Amendment No. 98: Page 117, line l9, at end insert— ("(1A) Where a social services authority request a relevant housing authority or body to assist them in the discharge of their functions under the Children Act 1989 or in the provision of community care services, the authority or body to whom the request is made shall co-operate in securing that accommodation is available for the benefit of any person (including a child) in respect of whom the request is made or in rendering such other assistance as is reasonable in the circumstances. (1B) Where a social services authority which is also a local housing authority is subject to a duty to provide community care services or services under the Children Act 1989 for the benefit of any person (including a child), and the authority determines that such services comprise or include the provision of accommodation for that person, the authority shall secure that suitable accommodation is available for occupation by that person. (1C) In this section "community care services" has the same meaning as in section 46(3) of the National Health Service and Community Care Act 1990 (which for the avoidance of doubt, shall include services provided under section 2 of the Chronically Sick and Disabled Persons Act 1970.)").

The noble Baroness said: My Lords, I am sorry that this amendment comes so late, perhaps we should have grouped it more brutally. Even though it is late I still wish to air the issue. The amendment concerns co-operation. As we know, it is not just housing departments who have housing responsibilities. Social services may have them as a way of discharging functions under the Children Act 1989; social services may also have a housing function as part of the community care package.

I think we all agree that it is essential that housing services should avoid being splintered. It is essential that housing policy be integrated with social services child care and community care policies, otherwise, some of the most vulnerable, homeless children and those who are, mentally and physically ill may slip into the gap between providing authorities.

Section 17 of the Children Act states that a local authority has the general duty to promote the welfare of children, including providing them and their families, if appropriate, with accommodation. Section 20 includes an explicit additional duty for the local authority to care for homeless children of 16 or 17. The local authority can meet those duties with its own accommodation or by ensuring that privately registered accommodation is available. Similarly, under the National Assistance Act 1948 the local authority may make available residential accommodation for those who are vulnerable through age, disability or illness. In other words, most children and most vulnerable people come within the categories of allocation policies in Part VI, but not all of them—and those others remain the responsibility of social services.

Perhaps I may give some examples of those remaining at risk. There are the children of parents who become intentionally homeless. Perhaps the family fails to keep up mortgage repayments which a reasonable person might judge they could pay. There are the children of someone who is homeless and who has refused an offer deemed suitable by the local authority. There are children fleeing, for example, racial harassment, where the local authority believes it is reasonable that the family should continue to live in their former accommodation but the family does not. Another example would be a 16 year-old who has left home following family breakdown, whom the local authority does not accept as vulnerable. Someone may need accommodation suited to his disability or to support from a carer but is nonetheless not regarded as homeless by a local authority. There may be a case where a single person has been discharged from a psychiatric or other hospital whom the local authority has not accepted as vulnerable. An asylum seeker may have applied in country, be destitute, have serious medical, physical or psychiatric problems, have no income, be unable to work, have nowhere to live and fall within community care responsibility.

I have listed just eight examples. I could add many more. All of those groups might be entitled to help from social services, even though they had been refused help by housing departments.

What happens then? Either social services have to become a housing department as well, and may therefore need to acquire a stock of dwellings or may need to place people in bed-and-breakfast accommodation; or we need to ensure that co-operative arrangements are in place. Co-operative arrangements, while desirable, are especially difficult where there is not a unitary authority. All social services can do is make a request, under Section 27 of the Children Act, or invite help under community care arrangements.

I remind the noble Earl of the case of R. v. Northavon District Council ex parte Smith 1994. The House of Lords held that Northavon District Council was entitled to refuse a request by Avon County Council social services department for assistance in housing a family with young children on the basis that the family was intentionally homeless.

This amendment would allow local authorities' social services departments to acquire and secure effective co-operation from housing departments while still leaving it open to the housing authorities to decide whether or not to secure accommodation or help social services in some other way.

At the moment the requirement of housing departments to respond to a social services request is too weak given the responsibility of social services under the Children Act and under community care. This amendment would strengthen the position of social services vis-à-vis housing departments and therefore, I hope, ensure that co-operation follows. I beg to move.

11.45 p.m.

Earl Russell

My Lords, the most remarkable example of inconsistent provision I know was in the regulations for the Civil Service in Northern Ireland about 30 years ago. Women in the Northern Irish Civil Service were allowed up to three children—but they were not allowed to be married. That is the result of applying to them the regulations about children which were designed originally for men while putting in a separate regulation prohibiting marriage. I am thankful to say that that is no longer the case.

These particular cases of inconsistent provision are mostly ones about which I remember my noble friend Lady Seear warning the House during the 1990 National Health Service and Community Care Act. Most of the fears she then expressed have proved to be justified. The purpose of the noble Baroness's amendment is only to connect. I think it is good advice and I am happy to support it.

Earl Ferrers

My Lords, the noble Earl, Lord Russell never ceases to fascinate me. His researches go a long way. To think that he found out that the Northern Irish civil servants could have three children but they must not be married seems to me quite extraordinary. I cannot think how he found that out. I can only assume it was what he found out when his tutor told him to go down to the Bodleian Library.

Earl Russell

My Lords, it so happens that my best man was the son of a Northern Irish civil servant.

Earl Ferrers

My Lords, that casts quite a lot of doubt somewhere, but I am not quite sure where. Perhaps we had better address ourselves to the amendment.

Under Clause 194 there is a specific duty of co-operation between local authorities and social service authorities. The Children Act of 1989 already incorporates the provisions sought by the amendment, specifically in respect of young people. Section 27 allows a social services authority to call on the assistance of a housing authority in discharging a duty to a young person. The housing authority is also under a duty to comply in such circumstances.

Community care is dealt with under the National Health Service and Community Care Act 1990, to which the amendment refers. Section 46 of that Act includes a specific requirement that local housing authorities are to be consulted in the drawing up of plans for community care services. It is for these reasons that we feel that the points which the noble Baroness seeks to cover are already covered. We do not regard the provisions which are sought by the amendment to be necessary. They are in statute already. That is why I hope the noble Baroness will realise, despite her indicating dissent, no doubt as a result of a discussion with the noble Earl, Lord Russell, that I cannot advise the House to accept the amendment.

Baroness Hollis of Heigham

My Lords, I am disappointed with the Minister's reply. I wonder whether he has checked the wording of the Children Act or the community care Act of 1990. I invite him, in all seriousness, to do so before Third Reading. My understanding is that currently all that social service authorities can do is to request co-operation. That request can be ignored. Social services have no come-back. They request co-operation under the Children Act; they invite co-operation under the National Health Service and Community Care Act. And that request can be ignored.

That is my reading of the situation. If I am wrong I am very happy to be corrected by the Minister. The Northavon case I quoted to the Minister upheld the housing authority's right to ignore the request. The amendment says that where a request is made the housing authority shall co-operate. It does not mean that it has to agree. But it may not ignore. It must consider and shall co-operate.

Obviously, at this time of night I shall be seeking permission to withdraw the amendment, but I ask the Minister to assure himself that the wording in the Children Act and the community care Act does what he believes it to do. I do not believe it does. If I am wrong I am genuinely happy to be corrected and have my fears laid to rest. Certainly, court cases suggest that my fears are well founded and that social services do not have the leverage that the noble Earl and I would like. If the Minister wishes to intervene I would welcome his doing so.

Earl Ferrers

My Lords, if I may have the leave of the House, the noble Baroness makes a perfectly reasonable request. She asks me to look at what she has said and to check over the two Acts; I shall certainly do so.

Baroness Hollis of Heigham

My Lords, I am very grateful to the Minister. I seek permission to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 196 [Regulations and orders]:

[Amendment No. 99 not moved.]

Schedule 15 [Homelessness: consequential amendments]:

Earl Ferrers moved Amendment No. 100: Page 180, leave out lines 21 to 28.

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 84. I beg to move.

On Question, amendment agreed to.

Clause 198 [Minor definitions: Part VII]:

Earl Ferrers moved Amendment No. 101: Page 118, line 41, at end insert— ("(3) References in this Part to the district of a local housing authority—

1. (a) have the same meaning in relation to an authority in England or Wales as in the Housing Act 1985, and
2. (b) in relation to an authority in Scotland, mean the area of the local authority concerned.").

The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 102 and 103.

Amendment No. 101 seeks to add a further definition to Clause 198 to ensure that references in these provisions to the district of a local housing authority retain the same meaning in England and Wales as in the Housing Act 1985. This amendment will also ensure that in relation to an authority in Scotland references to the district of a local housing authority would mean the area of the local authority concerned.

Amendments Nos. 102 to 107, which are also grouped together, are technical amendments. I commend the amendments to your Lordships. I beg to move.

On Question, amendment agreed to.

Clause 199 [Index of defined expressions: Part VII]:

Earl Ferrers moved Amendments Nos. 102 to 107: Page 119, line 6, at end insert— ("associated (in relation to a section (Meaning of associated person) person)") Page 119, line 6, at end insert— ("assured tenancy and assured shorthold tenancy section 211") Page 119, line 6, at end insert— ("district (of local housing authority) section 198(3)") Page 119, leave out lines 13 and 14 and insert— ("load' housing authority— -in England and Wales section 211, -in Scotland section I98(2)(a)") Page 119, line 8, at end insert— ("housing functions under this Part (in sections 191 to (Discharge of functions: arrangements with registered section (Discharge of functions: social landlord)) introductory)(2)") Page 119, line 21, at end insert— ("registered social landlord section 211")

On Question, amendments agreed to.

Baroness Flather moved Amendment No. 108: Before Clause 200, insert the following new clause—

EMERGENCY COMMUNICATION SYSTEM

(".—(1) A local housing authority may provide, inside or outside its area, facilities whereby occupiers of dwelling houses or other residential accommodation may, by agreement, be connected to an emergency communication system. (2) A local housing authority may make facilities provided by it under subsection (1) above available for use by such persons as the authority thinks fit either without charge or on payment of such charges as the authority thinks fit. (3) The powers conferred by this section are without prejudice to other enactments.").

The noble Baroness said: My Lords, this amendment concerns the provision of alarm systems to people living in council areas. I moved the amendment at Committee stage. It seeks to regularise a position which exists at the present moment.

Councils up and down the country provide such alarm systems not only to their own tenants but to housing association tenants as well as home owners. There is considerable doubt as to whether they can charge for that service from those who are not council tenants. The doubts have been expressed by the Audit Commission, which has not yet mounted a challenge. But the auditors are warning the councils to be careful in case such a challenge is mounted in the future.

When I brought forward this amendment on the previous occasion, my noble friend Lord Lucas assured me that there would be a consultation process which would start shortly. He has since very kindly written to me, putting forward one or two points about which he was concerned in the amendment which I brought forward earlier. They were points about whether the alarm systems should be restricted to the vulnerable and the elderly, whether they should be provided in the area of the council by that particular council and whether there could perhaps be more flexibility about their provision.

The amendment before your Lordships seeks to include those points. Since then, the agency has also consulted the other councils, local authority associations, the AMA, the ACC and indeed the social services. They have also taken into account the fact that alarm systems can be provided to anyone living in any particular council area by any council at all. There are quite a lot of partnership schemes taking place at the moment where one particular council specialises in the provision of the systems while the others take advantage of the provision. It would be detrimental to local authorities if such partnership schemes could not go ahead. In my council of Windsor and Maidenhead, the systems are provided by Wrekin and it works far better because it can be much more cost effective. We would not wish in any way to confuse the issue on that.

There is very little more that I can usefully add to what I said on the last occasion, except to emphasise that this is a totally benign amendment. It seeks to regularise an existing position. It enforces nothing; no one is forced to have such an alarm system. It gives local authorities the opportunity and ability to provide such a system. I beg to move.

Midnight

Lord Swinfen

My Lords, I supported this amendment at Committee stage and put my name to it on this occasion. As my noble friend said, Amendment No. 108 is purely an enabling amendment. It states that, A local housing authority may provide"; it is not compulsory; it is only permissive. Subsection (2) provides that, A local housing authority may make facilities provided by it under subsection (1) above available for use by such persons as the authority thinks fit". After Committee stage my noble friend was kind enough to send me a copy of his letter to my noble friend Lady Flather. I understand that the provision of community alarm systems is not simply a housing issue. However, as he wrote, local housing authorities can provide alarm systems for their tenants. Social services authorities, whether or not they be housing authorities as well, may provide the systems to certain defined vulnerable groups.

The provision exists in bits. It is like the curate's egg: some is good and some is not so good. I suggest to my noble friend that he takes this opportunity to accept the amendment and, if he needs to, he can amend it on Third Reading to cover the aspects with which he is not entirely happy. Alternatively, he may give an undertaking that he will bring forward his own amendment on Third Reading. As I said in Committee, it seems daft not to take the amendment on board at this stage. When are we next going to have a Bill in which this provision can be included? I do not see another one coming up for a very long time. I should grasp the opportunity now and run with it. I strongly support the amendment.

Baroness Hollis of Heigham

My Lords, I, too, hope that the Minister will be able to support the amendment moved so persuasively by his noble friend Lady Flather. This is a grey area of law. Local authorities want their position clarified so that they can do what they judge is best in their interests, without fearing that they may meet some legal challenge under the auditor's procedure.

I hope that the Government do not drag their feet any further. The amendment is not ideological; it is not contentious; it is entirely discretionary. It allows local authorities to recoup some of their costs. I hope that the Government can do as the noble Lord, Lord Swinfen, said: accept the amendment and, if necessary, adjust it at Third Reading if in any sense it is technically deficient. That would be a great delight—to use the Minister's words—to local authorities.

Earl Russell

My Lords, at this time of night I say only that this amendment enjoys support in every quarter of the House.

Lord Lucas

My Lords, I am therefore very sorry not to be providing a midnight delight for all our delectations. I listened carefully to the arguments of my noble friend and all other noble Lords in support of the amendment. But this clause is not the right way forward on this issue.

The present statutory position is that the law is clear that local housing authorities can provide alarm systems for their tenants. Equally, the law is clear that social services authorities can provide such facilities to certain defined vulnerable groups. At root, the concern of the local authority associations, as explained by my noble friend, is that the law is not clear about local authorities providing community alarms in any other situation.

To resolve this lack of clarity, we need first to address a number of fundamental questions, and this we are doing. In essence, we need to decide which local authorities should be able to provide community alarms. Should, for example, all local authorities—counties, districts, unitaries, and perhaps police authorities—be able to provide alarms or should it be restricted to certain authorities? Should authorities be able to provide this service to anyone resident in their area, or should provision be restricted to certain vulnerable groups or specific categories such as local authority tenants as at present? Should authorities be able to provide and charge for alarms to people outside their area or to business people? How would any general power to provide community alarms interact with authorities' other responsibilities in the fields of housing, social services and crime prevention? Should there be any restriction on precisely the kind of system which local authorities can provide? How would we define this adequately? What is the role of the private sector, and would it be right for local authorities to compete in the market for electronic communication systems?

It is these and other questions that we are addressing. We have not yet reached our conclusions nor, would it seem, has the noble Baroness. Once we have completed our work, it is our intention to consult the local authority associations and other interested parties on our conclusions, including any proposals for legislation.

My noble friend's amendment does not address the full range of issues. It is silent about authorities which are not housing authorities. On the other hand, it would open up the possibility of a particular class of local authority (housing authorities) being able to trade throughout the country in a market for emergency communication systems. That is a very broad term. Although we have not yet completed our analysis, we do not see a case for such wide ranging powers. My noble friend Lord Swinfen invited us to join the permissive society or, at least, this aspect of it. We do not feel ready to do so.

We are committed, as both I and my right honourable friend the Minister for Local Government, Housing and Regeneration have made clear, to resolving the present legal uncertainties. It is our aim that these should be resolved in a commonsense and practical way, ensuring that local authorities have the powers they need to provide those community alarm services, which would be best provided by local government.

I do not argue with my noble friend's description of the present situation being like the curate's egg. We are committed to arriving at the bishop's chicken, which I believe will be tasty throughout and altogether a better developed bird. This amendment does not achieve that. I hope that my noble friend will feel able to withdraw it. I understand her disappointment at our not being in a position to move ahead now on this matter, but there is a great deal of work that remains to be done. A great deal of consultation is required before we can go ahead. There is not the time in the time scale of this Bill to enable us to do that. I am sure and confident that in due course there will be other legislative opportunities to incorporate our conclusions in legislation.

Baroness Hollis of Heigham

My Lords, with the leave of the House and before the Minister sits down, perhaps he can answer this question. He said that further consultation is needed and that a legislative opportunity will present itself to the House. I am not quite sure why he has that confidence. He may be telling us something about the Queen's Speech in the autumn. If the Government were persuaded of the substance of the amendment, particularly following consultation with the local authorities who, I am sure, will say the same as has been argued here today, is there any way that they can amend the situation by regulation or will it require primary legislation? To stress the point made by the noble Lord, Lord Swinfen, when will the opportunity present itself? Can the Minister help on that? Is there some possibility that it does not require the vehicle of primary legislation to address this matter?

Lord Lucas

My Lords, I am sad at not being able to enliven this late hour with a description of what will be in the Queen's Speech. I have no knowledge of it. The noble Baroness is usually ahead of me in these matters and perhaps she is on this occasion.

Legislation which can have housing aspects is not that infrequent in this House. Even in my few years here I have seen plenty of it. It is our clear understanding that primary legislation will be required to do the sort of things which it is required should be done. That illustrates the fact that we are some way short yet of reaching our conclusions on what should be done.

Baroness Flather

My Lords, I must express my disappointment at my noble friend's response. Given the lateness of the hour, analogies with food do not exactly appeal. I am sure that when they read Hansard tomorrow, some noble Lords will wonder whether what has been said is common sense.

The questions that my noble friend posed are probably totally unanswerable because, unless some direction is given, there will be no end result. Given that this matter has been on the Whitehall merry-go-round for some two years—to use my noble friend's own words—I hope that there is not to be a further two years on an even longer and larger merry-go-round. The questions that my noble friend posed lead me to fear just such a merry-go-round.

In the meantime, I hope that at the very least my noble friend will give local authorities an assurance of some kind that no action will be taken on what has already been done because there is a possible danger of some such action in the near future.

Questions such as, "What about the private sector?" and, "What about other authorities?" arise. On the one hand, my noble friend said in his letter that this must not be restricted to the vulnerable and the elderly while on the other hand he himself says, "What about the private sector?". I am surprised that he did not mention that in his letter as well as extending the provisions to everyone in a local authority area.

I am very disappointed by what has been said and I am not filled with expectation. If all provisions had had to be subjected to that kind of nit-picking we would not have had to amend the number of Bills that we have, even in my time in this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 109: Before Clause 200, insert the following new clause—

MORTGAGE REPOSSESSIONS

(".—(1) For the purposes of section 36 of the Administration of Justice Act 1970 and section 8 of the Administration of Justice Act 1973 (under which a court has power to delay giving a mortgagee possession of the mortgaged property so as to allow the mortgagor a reasonable period to pay any sums due under the mortgage) there shall be a presumption that the full remaining period of the mortgage term is the reasonable period. (2) The court may exercise any of its powers under this section notwithstanding that the court may have exercised its powers under this section on a previous occasion.").

The noble Earl said: My Lords, it is the House's misfortune, as it is mine, that it has fallen to me to move two of the longest and most technical amendments to the Bill at 12.10 a.m. I am sorry that it is so and I shall do my best to be as fast as I can, but the material is difficult.

The amendment concerns mortgage repossessions—a problem that will not go away; first, because the private sector mortgage debt is now 62 per cent. of GNP or £362 billion. When this Government came into office, it was 26 per cent. of GNP. That is one reason why the feel-good factor has not come back. The second reason is the deregulated labour market. There is a potential conflict between a labour market in which people are expected to change jobs frequently and one in which they are expected to pay mortgages regularly. In fact, research from the DoE shows that 70 per cent. of repossessions are caused by job loss. In 1995, 49,410 properties were repossessed compared with only 19,300 10 years ago.

There is a conflict of legitimate interests in mortgage repossessions. The lender's interest is legitimate, as is that of the borrower, but hasty action tends to leave the lender saddled with an asset which, sold rapidly, does not generate what is wanted. A lot of action is taken in that regard which is not in anyone's interests.

Amendment No. 109 deals with the "reasonable period" set out in the 1970 Act during which mortgage arrears are to be paid off. It seeks to incorporate in statute the judgment of the Court of Appeal in Cheltenham & Gloucester Building Society v. Norgan, which laid down that the reasonable period for clearing mortgage arrears should start from calculating the remaining term of the mortgage. Since that judgment exists, the Minister may wish to assure me that this amendment is unnecessary. I wish that were so. A great many judgments are coming out, especially in the lower courts, in ways which are wildly inconsistent with the Court of Appeal. A district judge in Lancashire recently said that he expected all arrears would normally be cleared within two years, and that four should be the maximum. That has come out since the Court of Appeal judgment.

The other reason why the Court of Appeal judgment has not achieved what is required is that a great many litigants appear unrepresented. People who are suffering mortgage repossession are not normally in a good position to pay for lawyers, and in the light of forthcoming cuts in legal aid the proportion of mortgage repossession cases where the applicant is unrepresented is likely to go up. So then they become homeless and there is a considerable cost to public funds. I think there would be a great asset, in terms of consistency and security, in expressing this principle clearly in statute law. It would be easier for the lenders to become familiar with it and it would be easier for the lower court judges to become familiar with it.

Obviously the lenders might wish to object that they were being asked to accept an unsecured loan, but in so far as there is negative equity that is true already. There are a lot of cases, and I fear that I must quote one or two to show how things are being done which are not in the interests of either party and where everyone would be better off if this were adopted. Take, for example, the case of a woman who was made redundant, claimed income support and was told by her lender that if she made no payment for eight weeks possession proceedings would be instituted. That would have left the lender with an expensive asset and a "fire sale" which would not realise its true value. If people are to be expected to change jobs, some arrangement must exist for tiding over intervals like that. This amendment seeks to provide that. I believe it to be in the interests of all parties and I believe it to be practical. I beg to move.

Lord Lucas

My Lords, I am a little confused as to whether the noble Lord was talking to Amendment No. 110 as well as to Amendment No. 109.

Earl Russell

My Lords, I am dealing with Amendment No. 109, but I inadvertently let fall a single sentence which referred to Amendment No. 110. That was my error.

Lord Lucas

My Lords, I thank the noble Earl. We share the view that unnecessary repossession should be avoided, but the courts already have the discretion which this amendment appears to try to give them. The recent Appeal Court case of Cheltenham & Gloucester Building Society v. Norgan makes it clear that the remaining term of the mortgage should be taken by judges as the starting point for determining what constitutes a reasonable period for the repayment of arrears outstanding on a mortgage.

We feel it would be unhelpful to fetter the court's discretion in the way that this amendment does. In any individual case, what constitutes a reasonable period for repayment of arrears will depend on the circumstances of that particular case. This is a matter for the judge to decide after looking into the borrower's financial circumstances and the lender's position. As I have just said, the Appeal Court has made it clear that the starting point is the remaining term of the mortgage. Obviously there will be situations where that is entirely inappropriate: where the remaining term of the mortgage is so short that no reasonable repayment can be made over it, and where the remaining term of the mortgage is very long and the borrower has other assets which can easily be sold in the reasonably short term to provide the necessary additional payments.

These are situations where the courts need the flexibility they have at present in order to make the proper decisions. It has been suggested that case law alone will not lead to a change in the practice of mortgage lenders. We see no reason why this should be so. Indeed my right honourable friend the Minister for Local Government, Housing and Urban Regeneration has received a letter from the Director General of the Council of Mortgage Lenders, which acknowledges that lenders will have to take account of the Appeal Court judgment in dealing with future arrears and possession cases.

To the extent that there is any inconsistency in the exercise of the discretion of judges as to what constitutes a reasonable period, that may be due to inadequate guidance. Perhaps the case cited by the noble Earl is an example of that. Action has been taken to remedy it. Detailed guidance is set out in the judgment of the Court of Appeal. The Judicial Studies Board, which provides notes for the guidance of district judges in the exercise of their discretion, has updated the notes to alert judges to the judgment of the Court of Appeal.

The guidance for judges will ensure that the Court of Appeal judgment is quickly disseminated and is duly reflected in court decisions and lending practices. The noble Earl raises the question whether the amendment will benefit borrowers particularly when they are not represented in court. The best way to protect borrowers is to ensure that judges hearing those cases are fully aware of the judgment of the Court of Appeal, and that is already in hand. We believe the amendment to be unnecessary. I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell

My Lords, I thank the Minister for his reply. What he said about guidance went a long way to meeting my concern. But I ask him not to overrate the awareness of all judges, especially in lower courts, with the latest decisions. In the reign of Elizabeth I, judges discovered that for 18 years they had been hanging people under a repealed statute. I am not suggesting that any such errors occur today. But, when we consider our own inability to recollect conflicting provisions in Bills that we have passed within the past five years, we must be understanding.

I must ask the Minister to think seriously and consult his noble and learned friend the Lord Chancellor about the cost to public funds of people who become homeless because they are unrepresented at repossession hearings. It may wipe out the whole of the saving. However, that is for the future. For the time being, I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 110: Before Clause 200, insert the following new clause—

NEGATIVE EQUITY

(".—(1) The power of the court under section 91 of the Law of Property Act 1925 ("the 1925 Act") to direct a sale of mortgaged property, on such terms as it thinks fit, shall, in respect of a dwelling house or part of a dwelling house occupied by a mortgagor in possession, include power to direct a sale free of the mortgage by the mortgagor, notwithstanding that the sum secured by the mortgage exceeds the sale price, and so to direct on terms that the mortgagor shall be entitled to deduct from the gross proceeds of sale his reasonable costs and expenses of effecting the sale before accounting to the mortgagee for the net proceeds. (2) Where an application is made to a court by a mortgagee or any other interested person under section 91 of the 1925 Act for a direction that a mortgaged property to which subsection (1) applies be sold, the court may if it thinks fit suspend the making of the direction for a reasonable period to allow time for redemption or for the payment of any mortgage money or for sale by the mortgagor. (3) Notwithstanding anything to the contrary in any other enactment, a County Court shall have jurisdiction under section 91 of the 1925 Act to determine an issue arising under this section whatever the amount owing in respect of the mortgage charge.").

The noble Earl said: My Lords, Amendment No. 110 also deals with mortgage repossessions, in particular reasonable settlements of mortgage debts. It has three parts. It provides a power to direct a sale free of the mortgage, which means that what is left over is debt minus the net proceeds. It gives power to suspend the direction for a sale for a reasonable period. It also makes clear that jurisdiction should lie with the county court. The same points made earlier about the need for reasonable settlements in the interests of all parties apply here, and I need not repeat them.

At the moment, a considerable number of cases that are going through are not in the carefully considered interests of either party. It may be that a junior official in a bank feels a cold breath down his neck. Not every junior bank manager has the benefit of the legal advice of the noble Lord, Lord Alexander of Weedon. Let us take as an example a case in Sussex where the borrowers fell into arrears on the mortgage. They tried to agree with the lender to sell the property for £115,000. They were refused permission to do so. The property was repossessed. A year later the lender sold the property for £90,000. By that time arrears had increased by a further £9,000. The final unsecured, unmet debt was £53,000. Clearly, that was not in the interests of anybody.

Another case concerned a woman separated from her husband. A buyer was found for the property and an offer of £19,000 was made. The lender refused to allow the sale to go through because it would not cover the outstanding loan which totalled £26,000. The property was repossessed. Eventually, the lender had to sell it, not for £19,000, but for £9,000. That was not in the interests of the lender, borrower or anybody else. I believe that this amendment would do something to meet a very real need.

It was at this point that I inadvertently allowed a line about unsecured debt to wander from one amendment to another, which I believe disconcerted the noble Lord, Lord Lucas. He could see, I think, that it belongs here where it should have been in the first place. Again, there is a Court of Appeal case—the Barrett case—which bears that out. But once again district judges do not know it, unrepresented borrowers do not know it, and it is not being acted on. I hope the amendment would clear up the situation. I beg to move.

Lord Lucas

My Lords, in the Government's view, Amendment No. 110 is unnecessary. It seeks to insert into the Bill proposals which reflect the recent decision of the High Court in the case of Barrett v. Halifax Building Society. In that case the court decided that the borrowers could sell their property to their buyer against the wishes of their lender because the lender could not in the foreseeable future improve upon the price agreed. The court therefore decided that its power to order a sale under Section 91 of the Law of Property Act 1925 was unfettered, though it was to be exercised judicially by having due regard to all the interests concerned. The court also decided that the borrowers could deduct reasonable costs of the sale before accounting to the lender.

The case followed the judgment of the Court of Appeal in the case of Palk v. Mortgage Services Funding in 1992, which decided that the court has the power to order a sale against the wishes of the lender if it was just and equitable despite the fact that the mortgage debt would remain unsecured. Again, the power has to be exercised judicially by taking account of the interests of all the parties.

The two judgments therefore make it clear that the courts already have the power to order a sale in the circumstances set out in the amendment. Furthermore, it is clear that the courts already have the power to suspend an order for sale to allow the owner time to negotiate a sale. The first two parts of the proposed new clause therefore add nothing to the present position under law. We are quite clear that the Council of Mortgage Lenders is fully apprised of the effects of these court cases in looking at the way in which its members should conduct their business in future. I do not have with me the guidance issued to district circuit judges as a result of the cases, but I shall obtain a copy and send it to the noble Earl before Third Reading.

The third part of the amendment seeks to extend the jurisdiction of the county courts in cases of this kind, regardless of the amount owed on the mortgage. My noble and learned friend the Lord Chancellor has given jurisdiction under Section 91 of the 1925 Act to the county courts where the mortgage debt does not exceed £30,000. As your Lordships will know, the report of the review of civil litigation carried out by the noble and learned Lord, Lord Woolf, is due to be published later this summer. As part of his review, the noble and learned Lord has been considering the appropriate forum for housing cases and the distribution of work between the High Court and the county courts. It seems to me that the appropriate course is for my noble and learned friend to be given the opportunity to take account of the aims of this part of the amendment in the context of the implementation of the recommendations of the noble and learned Lord, Lord Woolf. For all these reasons, I hope that the noble Earl will be able to withdraw the amendment.

Earl Russell

My Lords, I thank the Minister for that reply. I agree with what he said about the, Barrett judgment. I agree with what he said about the Council of Mortgage Lenders. Not every junior manager is fully aware of every decision of the Council of Mortgage Lenders. Again, there is a problem in current cases of applying the Barrett judgment.

In a recent case in west London, where there was a mortgage of £68,000 and arrears of £8,000, the lender took possession proceedings. The client found a buyer for £72,000. The lender refused to let the sale go ahead on the ground that it would not cover the outstanding debt. I think it covered far more of it than would have accrued otherwise. By making representations, the citizens advice bureau was able to persuade the lender to change its mind. But I fear that the present state of the law means that one cannot get the benefit of the Court of Appeal judgment unless one enjoys the support of a citizens advice bureau making representations. And although I am second to none in my admiration for citizens advice bureaux, it is not realistic to expect every single litigant to have one to represent him.

I believe that the amendment does meet a need. However, the Minister has gone a long way towards meeting my concerns. I thank him for doing so and beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

12.30 a.m.

Clause 203 [Miscellaneous minor amendments]:

Lord Lucas moved Amendment No. 111: Page 121, line 40, at end insert— ("Part IIA relates to orders in relation to property in family and matrimonial proceedings, &c..").

The noble Lord said: My Lords, I spoke to this amendment when I moved Amendment No. 5. I beg to move.

On Question, amendment agreed to.

Schedule 16 [Miscellaneous provisions]:

Lord Lucas moved Amendment No. 112: Page 182, line 47, leave out ("income and expenditure is") and insert ("items or amounts are").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 113 to 120. Paragraphs 4 and 5 of Part II of Schedule 16 add three new sections into Part VI of the Local Government and Housing Act 1989. These will enable the Secretary of State to give directions which will give authorities more discretion over how they account for certain items of expenditure and income. Amendments Nos. 112 to 120 are purely technical. They are designed to clarify the scope of the Secretary of State's powers. I beg to move.

On Question, amendment agreed to.

Lord Lucas moved Amendments Nos. 113 to 120: Page 182, line 49, leave out ("flats in") and insert ("parts of'). Page 183, line 4, leave out ("income and expenditure is") and insert ("items or amounts are"). Page 183, leave out lines 8 to 10. Page 183, line 14, leave out ("flats in") and insert ("parts of'). Page 183, line 16, leave out from ("authority") to end of line 18 and insert ("which has successfully bid for the work on a competitive basis."). Page 183, line 29, leave out from beginning to ("in") in line 30 and insert ("Directions under subsection (2)(a) may make provision for determining the amount to be treated as the amount of the authority's successful bid. References"). Page 183, line 44, leave out ("may be") and insert ("he thinks fit"). Page 184, line 7, leave out ("may determine") and insert ("thinks fit").

On Question, amendments agreed to.

Lord Lucas moved Amendment No. 121: Page 185, line 36, at end insert—

("PART IIA

ORDERS IN RELATION TO PROPERTY IN FAMILY AND MATRIMONIAL PROCEEDINGS, &C.

Housing Act 1980 (c.51)

6A. In section 54(2) of the Housing Act 1980 (prohibition on assignment of protected shorthold tenancy or protected tenancy of dwelling-house), for "except in pursuance of an order under section 24 of the Matrimonial Causes Act 1973" substitute— except in pursuance of an order under—

1. (a) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings);
2. (b) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (c) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents).".

6B.—(1) Section 39 of the Housing Act 1985 (exempted disposals) is amended as follows. (2) In subsection (1), for paragraph (c) substitute— (c) it is a disposal of the whole of the house in pursuance of any such order as is mentioned in subsection (3); (3) After subsection (2) add— (3) The orders referred to in subsection (1)(c) are orders under—

1. (a) section 24 or 24A of the Matrimonial Causes Act 1973 (property adjustment orders or orders for the sale of property in connection with matrimonial proceedings),
2. (b) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate),
3. (c) section 17 of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders or orders for the sale of property after overseas divorce, &c.), or
4. (d) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".

6C. In section 88(2) of the Housing Act 1985 (cases where secure tenant is a successor) after "proceedings)" insert "or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.)". 6D. In section 89(3) of the Housing Act 1985 (succession to periodic secure tenancy) for the words from "under" to the end substitute— under—

1. (a) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (b) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (c) paragraph 1 of Schedule I to the Children Act 1989 (orders for financial relief against parents).".

6E. In section 90(3) of the Housing Act 1985 (devolution of secure tenancy), for paragraph (a) and the word "or" at the end of the paragraph substitute—

1. "(a) the vesting or other disposal is in pursuance of an order made under—
1. (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or".

6F. In section 91(3) of the Housing Act 1985 (cases where assignment of secure tenancy permitted), for paragraph (b) substitute— (b) an assignment in pursuance of an order made under—

1. (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".

6G. In section 99B(2) of the Housing Act 1985 (persons qualifying for compensation for improvements) for paragraph (e) substitute— (e) a person to whom the tenancy was assigned by the improving tenant in pursuance of an order made under—

1. (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".

6H. In section 101(3) of the Housing Act 1985 Act (rent not increased on account of tenant's improvements: qualifying persons) for paragraph (c) substitute— (c) a person to whom the tenancy was assigned by the tenant in pursuance of an order made under—

1. (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or
3. (iii) paragraph 1 of Schedule I to the Children Act 1989 (orders for financial relief against parents);".

61.—(l) Section 160 of the Housing Act 1985 (exempted disposals in relation to right to buy) is amended as follows. (2) In subsection (1), for paragraph (c) substitute— (c) it is a disposal of the whole of the dwelling-house in pursuance of any such order as is mentioned in subsection (3);". (3) After subsection (2) add— (3) The orders referred to in subsection (1)(c) are orders under—

1. (a) section 24 or 24A of the Matrimonial Causes Act 1973 (property adjustment orders or orders for the sale of property in connection with matrimonial proceedings),
2. (b) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate),
3. (c) section 17 of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders or orders for the sale of property after overseas divorce, &c.), or
4. (d) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".

6J. In section 171B(4)(b) of the Housing Act 1985 (extent of preserved right to buy: qualifying successors of tenant), after sub-paragraph (ii) insert— or (iii) a property adjustment order under section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iv) an order under paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents),". 6K. In paragraph 1(2) of Schedule 6A to the Housing Act 1985 (obligation to redeem landlord's share: excluded disposals), for paragraph (c) substitute— (c) it is a disposal in pursuance of an order under—

1. (i) section 24 or 24A of the Matrimonial Causes Act 1973 (property adjustment orders or orders for the sale of property in connection with matrimonial proceedings),
2. (ii) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate),
3. (iii) section 17 of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders or orders for the sale of property after overseas divorce, &c.), or
163
4. (iv) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents),".

Landlord and Tenant Act 1987 (c.31)

6L. In section 4(2) of the Landlord and Tenant 1987 (right of first refusal: excluded disposals), for paragraph (c) substitute— ("(c) a disposal in pursuance of an order made under—

1. (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
2. (ii) section 24A of the Matrimonial Causes Act 1973 (orders for the sale of property in connection with matrimonial proceedings) where the order includes provision requiring the property concerned to be offered for sale to a person or class of persons specified in the order,
3. (iii) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate),
4. (iv) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.),
5. (v) section 17(2) of the Matrimonial and Family Proceedings Act 1984 (orders for the sale of property after overseas divorce, &c.) where the order includes provision requiring the property concerned to be offered for sale to a person or class of persons specified in the order, or
6. (vi) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".

Housing Act 1988 (c.50)

6M.—(1) Paragraph 4 of Schedule 11 to the Housing Act 1988 (repayment of discount on disposal: exempted disposals) is amended as follows. (2) In sub-paragraph (1), for paragraph (c) substitute— (c) it is a disposal of the whole of the house in pursuance of any such order as is mentioned in sub-paragraph (4) below;". (3) After sub-paragraph (3) add— (4) The orders referred to in sub-paragraph (1)(c) above are orders under—

1. (a) section 24 or 24A of the Matrimonial Causes Act 1973 (property adjustment orders or orders for the sale of property in connection with matrimonial proceedings),
2. (b) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate),
3. (c) section 17 of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders or orders for the sale of property after overseas divorce, &c.), or
4. (d) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents);".").

On Question, amendment agreed to.

The Deputy Speaker (Lord Lyell)

My Lords, before I call Amendment No. 122, I should point out that there is a printing error. The amendment should refer to Page 188, line 28.

Baroness Hollis of Heigham moved Amendment No. 122: Page 188, line 28, at end insert—

("Overcrowding

Part X (Overcrowding) of the Housing Act 1985 is amended as follows—

1. (a) in paragraph (b) of subsection (2) of section 325 for the words from "locality" to the end, substitute "as a bedroom"; and
2. (b) in paragraph (b) of subsection (2) of section 326 for the words from "locality" to the end, substitute "as a bedroom".").

The noble Baroness said: My Lords, I shall be extremely brief. The current standard of overcrowding concerning fitness and so on is based on the 1935 housing legislation which takes into account living rooms and not merely bedrooms, so that two adults and two children under ten would not be regarded as being overcrowded if they lived in a one-bedroom flat because the living room would be taken into account as a room available for sleeping in.

Most local authorities have long since passed that 1935 standard and seek to use instead, perfectly properly, a bedroom standard of accommodation so that a couple with two children under the age of ten, of either the same or different sexes, would be entitled to two bedrooms rather than one. However, the legislation should be updated. It goes back to 1935 and is anachronistic. I hope that even at this late hour the Minister will undertake to tidy up this area of the law at a later stage of the Bill. I beg to move.

Lord Lucas

My Lords, I shall try to be similarly brief. I suspect that there is more to this amendment in terms of the length of the reply that I might give and the advocation which the noble Baroness might have used than we have been treated to this evening.

Clearly, as the noble Baroness said, this legislation was passed a long time ago. Very few houses fail even the advanced standard which she advocates and most of those are in the private rather than the rented sector. About 5 per cent. of local authority properties would fail the test which she proposes.

Turning to the subject of being homeless by reason of overcrowding—if I may phrase it that way—if accommodation is not available for occupation, a person is considered to be homeless. Overcrowding is a factor which can properly be taken into account in this context, but there is no requirement to take into account the definition of overcrowding in Part X of the Housing Act 1985. It would be my understanding therefore that there would be no need to amend the 1985 Act—with all the ramifications that might have for enforcement of this legislation in private housing and other areas—in order to deal with the problem the noble Baroness has raised on how this would apply to the homelessness legislation. It is a subject I should be happy to discuss with the noble Baroness before Third Reading if she thinks there is something further that needs to be gone into.

Baroness Hollis of Heigham

My Lords, I thank the Minister for that offer. I accept that it is late at night, but if I may I should like to receive a fairly full letter from the Minister on this subject, because it is absurd to operate dual standards—a bedroom standard, whichhow local authorities allocate; and a living room standard by which they determine whether or not a family is in overcrowded housing, and therefore comes within everything from HMOs to being on the route to homelessness. We need to explore this matter further, but I accept the Minister's gracious offer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.

House adjourned at twenty-three minutes before one o'clock.