Housing Bill

HL Deb 19 June 1996 vol 573 cc390-446

House again in Committee on Clause 148.

Earl Russell moved Amendment No. 264ZC: Page 91, line 32, leave out subsection (3).

The noble Earl said: In moving this amendment, I should like to speak also to Amendments Nos. 264ZD, 264ZF and 264ZG. Although I know that that sounds like an alphabet soup, these are really all one consecutive amendment. They are part of a series of amendments which I had hoped to move if I had been here a little earlier in the day. They follow on from what I was unable to speak to, which is Clause 144(2). The question they raise is why the Secretary of State is taking the power to control all the principles under which housing allocation is carried out. I ask why he is doing this in a very real curiosity and I hope to get a few of the answers.

I am a little reminded, looking at the powers the Secretary of State is taking over the allocation of housing, of the description in 1066 and all that of Poyning's Law, which was that the Irish were to have a parliament but the English were to pass all the Acts in it. Similarly, it seems to be the policy of this clause that local authorities are to have a housing authority but the Secretary of State is to do all the allocation in it. If you have housing powers in local authorities it really does seem a little superfluous for the Secretary of State to take such complete control of them himself. It is, in the nice 17th century phrase, the Secretary of State keeping a dog and barking himself. I really do not understand why he is doing it.

Is it because the Secretary of State knows best? It seems a little improbable because he is not actually there in every local authority in England, Scotland and Wales. Or is it that the Secretary of State has an agenda and intends to impose that agenda on local authorities, whether they like it or not? And if he does have an agenda, will we by any chance be entitled to know what it is? That is an interesting question because people might wish to discuss it.

The clause also raises the question: should the principles of housing allocation be the same everywhere in the country? I do not think it is by any means self evident that they should. The Minister will recall the university amendment to Clause 9 of the asylum Bill to which he gave an extremely generous and welcome answer. That dealt with areas of the country where local authorities have let blocks of housing to universities because there is no great demand for the housing in those areas. The noble Lord, Lord Goold, mentioned the Gorbals in that context. So, clearly, demand is different in some places from others. Demand for housing in Islington or Brent is very different from demand for housing in a former pit village where there is now no employment to speak of. And if there are these differences, as I believe there are, is the Secretary of State really the best person to observe them, or might they just possibly be better observed by those who live with them every day and actually have to notice them as they go about their business? If a local authority perceives a particular pattern of housing need in its area and wants to respond to it, why does it have to ask the Secretary of State whether it is allowed to do anything about it?

In subsection (3) of Clause 148 the Secretary of State takes power by regulations to, specify further descriptions of people to whom preference is to be given as mentioned in subsection (2)".

In fact, because he is taking a very detailed set of powers, he has to say to himself very correctly, "Maybe I have forgotten something", so the more detailed the power he takes, the more detailed also the power he has to take to vary it. This is an infinite regression. Great powers have little powers upon their backs to bite 'em, and little powers have lesser powers, and so on ad infinitum.

In subsection (3)(b) we have a Henry VIII clause, and those the House is well known not to view with very great favour. The Secretary of State takes the power to, amend or repeal any part of subsection (2)".

In fact, once again, the more detailed the legislative power that is taken, the more detailed the proposals have to be to allow the Secretary of State to vary it. It is really a rather fusspotty style of legislation. It is the style of legislation of the housewife who can always see a speck of dirt where no one else can possibly see it. It creates a constant itch to change.

In subsection (4)—this is one of the provisions I am most curious about—the Secretary of State, may by regulations specify factors which a local housing authority shall not take into account in allocating housing accommodation".

Why not? If the authority thinks that is the need, why should it not respond to it? What sort of restrictions does the Secretary of State intend to impose under this regulation-making power? He must have something in his mind that he wanted to do with it or he would not have asked for it. Or is he just asking for it in case he should want to make a fuss in the future? We really must know, when we are approving powers of this kind, at least what it is presently intended to do with them. We should also consider what some future government might do with them.

I know the Minister does not like the argument of what future governments might do with regulations. But if we put these powers onto the statute book and leave them there, then someone—perhaps 20 or 30 years hence—will use them in ways which we might find absolutely outrageous. It would be perfectly possible, for example, in a country with less generous attitudes to the old than we have at present, for some future government to say that everyone over the age of 75 would not have any entitlement to local authority housing. And in this House of all places I think that that might be a little unpopular.

The Minister will of course say that no government will ever do that. I am not accepting that argument. For many years I told pupils that no government in this country would ever again introduce a poll tax and that they had learnt that it did not work. Since then the boundaries of what no British government will ever do have been moving so fast that I have been unable to keep up with them. Seven or eight times in a Session something is introduced which I thought no British government would ever do. Since I do not know where the boundaries are, I am not prepared to give any weight to that argument.

Subsection (5) simply states that, the scheme shall be framed in accordance with such principles as the Secretary of State may prescribe by regulations".

It is the same point again, and I do not understand why it is being done. The words I wish to delete from subsection (6) under the last of the amendments are simply consequential. If I ever heard of a nanny state anywhere, I heard it in this clause. Why? I beg to move.

Lord Mackay of Ardbrecknish

In proposing these amendments the noble Earl, Lord Russell, revisits a general issue of principle we have discussed on a number of occasions. I wish to look at it against the background of the three subsections which his amendments seek to delete from the Bill and explain how we envisage our use of them and the possible impact on local authorities. Before I come to that, the idea that somehow or other the Secretary of State is going to be involved in every single housing allocation in every part of the country is simply not true. Nor indeed is it true that allocation schemes should be the same everywhere in the country. However, the principles on which they are based should be the same. Against those principles it shall be for each local authority to decide on its scheme, on the criteria it uses and the level of need that it applies to each of the factors in Clause 148(2). Most local authorities operate what is called a points scheme; it will be for them to decide how points are allocated for different priorities. So this is not a device which the Secretary of State will use to control every housing allocation in the country.

Amendment No. 264ZC seeks to remove Clause 148(3). The subsection enables the Secretary of State to change any of the principles which local authorities must observe in determining how priority should be given in their allocation scheme. This is an important provision. It will enable us to add further categories to whom preference must be given and will also enable us to amend any part of the provisions for determining priority.

We believe that the principles in subsection (2) are appropriate and wide-ranging measures of housing need. However, our experience of past and present legislation, which contains a number of provisions dating back to 1935, shows that housing need can change. Conditions which were prevalent in 1935, such as the widespread lack of basic facilities, may no longer have the significance they once had.

Other factors, one of which was raised by the noble Earl, include, for example, old age and also family breakdown, a fairly new phenomenon. Not long ago it could reasonably be assumed that one family would occupy one house. Unfortunately, with divorce, a fairly significant number of families are now split and require two houses. In fact, it is one of the underlying causes of the pressure on the housing stock. These are indications of change.

There is the advent of community care where we like to see people looked after in the community and no longer placed in long-stay large hospitals, especially hospitals catering for mental illness and mental handicap. These are all factors which have changed quite dramatically over time. Who can tell what changes there will be in the next two or three decades?

We believe that the regulation-making power in subsection (3) will enable governments in the future to keep the legislation up-to-date as regards changing demographic and social conditions without the need for primary legislation. In recognition that the power in subsection (3) is wide ranging and that it would amend primary legislation, the regulations under the subsection are to be subject to the affirmative resolution of each House. I believe that this is a sensible provision and that we have taken adequate safeguards to prevent the power being used lightly.

Amendment No. 264ZD seeks to remove subsection (4) which specifies the factors which must be disregarded in allocating houses. This power will enable the Secretary of State to prevent authorities from taking account of factors which would discriminate unfairly against particular groups of applicants. We hear from time to time of cases where an authority discriminates against certain applicants, for example, by giving excessive priority to children of their own tenants or by refusing to give proper consideration to applications from single people. By having the powers in regulations the Secretary of State will be enabled to act quickly to prevent abuse of the new provisions, should that prove necessary. Regulations under this subsection will be subject to the negative resolution procedure.

Amendment No. 264ZF would remove the Secretary of State's power to specify the principles governing the procedures to be followed in allocating housing. One use of this power, which was discussed in the January consultation paper and discussed in Committee earlier today, would be to restrict the involvement of elected local authority members in allocation decisions on individual cases. My honourable friend the Parliamentary Under-Secretary of State for Wales has indicated his concern that this practice is still prevalent in some local authorities in Wales. There has been support in some circles for similar provision to be made in England. Regulations under this subsection could disqualify members from involvement in certain decisions; for instance, those relating to housing in their own wards. These are likely to cover matters of detail.

8.45 p.m.

Baroness Fisher of Rednal

Can the noble Lord give me any advice? Would some of the things he is saying have affected Westminster City Council? Would that council have been in the dock with the Government if these regulations had been in force then?

Lord Mackay of Ardbrecknish

The Government are not in any dock.

Baroness Hollis of Heigham

Westminster City Council is!

Lord Mackay of Ardbrecknish

I do not believe that that council was making decisions on that basis. When I joined a local authority some members of it, including members of the party opposite, rather liked the privilege they had of deciding who should or should not receive a house. There was a list with a points system.

Baroness Hollis of Heigham

I can see why the noble Lord left and came to Westminster.

Lord Mackay of Ardbrecknish

Perhaps the noble Baroness will contain herself. That was a very unsatisfactory position. When I joined the authority I combined with a member of the party opposite who took the same view—

Earl Russell

Perhaps I may once again ask the Minister to withdraw the phrase "the party opposite", especially when speaking to an amendment from these Benches.

Lord Mackay of Ardbrecknish

I thought I was looking fairly clearly at what I mean by the "party opposite". If the noble Earl wishes to begin splitting the parties opposite, I shall deal with that in a moment. A senior member of the Labour Party and myself combined together to get rid of what he and I thought was a pretty iniquitous practice and brought forward a points system. That meant that the service was delivered on a much fairer basis. The noble Earl has tempted me. I must tell him that the proposal was fiercely resisted by one member of his own party who rather liked the privilege of dispensing council housing in a slightly more personal way than I thought was right and proper.

Lord Monkswell

The Minister has been casting aspersions at Labour and Liberal Democrat councillors. Just to set the record straight, the Minister may like to know that when I was a city councillor in Manchester I was aware of a situation where a Conservative councillor so terrorised local housing officers into allocating housing for his chosen constituents that something had to be done about it and it was. I hope the Minister will recognise that as regards local government and housing allocation, it is not dealt with in the way the Minister paints it.

Lord Mackay of Ardbrecknish

I was not trying to paint it in the way suggested by the noble Lord. I was simply saying that I have had experience of a local authority with a rather antiquated way of dealing with the matter. The noble Earl tempted me to reminisce on the subject of political complexions, but as everybody stood as an independent I am not sure where that leaves us.

We are all agreed that the allocation of council housing should be decided on a transparent basis and, in my view, that is best operated by some form of points system. However, that is to get away from the point about one of the things that we might want to do using the power which Amendment No. 264ZF seeks to delete. Regulations under subsection (5), which the noble Earl would remove, could disqualify members from involvement in such decisions. Such regulations are likely to cover matters of detail and I think that secondary legislation, with the negative procedure, is the right way to do that.

As the noble Earl said, Amendment No. 264ZG is consequential on the previous amendments and would disapply the main principles for determining priority in allocation under subsection (2). An authority would thus be able to allocate housing entirely as it chose without any reference to the principles for meeting housing need which are at the heart of our provisions. The one thing about which I am pretty certain following all our hours of discussion today is that most noble Lords believe that such principles should be specified. Much of our debate has concentrated on whether more principles should be laid down in statute than those which are already on the face of the Bill. I do not think that there is much disagreement on that, unless the noble Earl thinks that local authorities should be able to allocate housing without any regard to any of the principles in Clause 148(2). I am sure that that is not the noble Earl's intention, but that could be the result if his amendment were accepted.

The provisions of the three subsections are important. We are taking the proper steps to ensure that they are used carefully. The procedures are there. The most important power given to the Secretary of State can be exercised only by affirmative resolution. The others operate under the negative procedure. My understanding is that the Delegated Powers Scrutiny Committee, which considers matters of secondary legislation, has not commented on these matters. With that explanation of why we envisage that we may need the power, I hope that the noble Earl will withdraw his amendment.

Earl Russell

I am quite used to people who begin a book at the last page; what I am not quite so used to is people who begin absolutely in the middle, which is what the Minister has done tonight. He has given a detailed and, I think, perfectly reasonable justification of why, if the Secretary of State is to decide all the priority categories, the powers of subsection (3) are needed.

However, that was not the question that I asked and that is why I was not particularly dismayed—or, indeed, particularly surprised—by the fact that the Delegated Powers Scrutiny Committee did not refer to the clause. I am not making a purely drafting or constitutional point; I am asking a question about policy. I am asking the Minister why the Secretary of State is the best person to determine categories of housing need. I have not had an answer to that and, before I decide what to do with the amendment, I hope that I shall have an answer.

The Minister said that housing allocation has to be fair and orderly. That is agreed. A general requirement that it should be done according to housing need, together with the power of judicial review, will do a great deal of what is wanted. Curiously, yesterday I was complaining of the Government relying on judicial review where legislative restraint was more appropriate; here they are relying on legislative restraint where judicial review (which is all about the requirement of basic procedural fairness) is more appropriate. That is all that we need here. We do not need the Secretary of State taking all these decisions himself and I do not see how he is competent to do so.

If there is discrimination against certain broad categories, that will be caught by the Race Relations Act or the Sex Discrimination Act. Beyond that, it would be caught by the requirement for procedural fairness. We do not need to quote party examples. I think that we are agreed that all power tends to corrupt and, without commenting on any individual case because I am not surprised if it happens in any context, perhaps I may say that it happens at Westminster too.

Can the Minister tell me why the Secretary of State is competent to have those powers? And can he tell me another thing that he did not tell me? In subsection (4) why does the Secretary of State want to specify factors which shall not be taken into account, and what sort of factors does he mean? I did not hear an answer to that and I should like to hear one.

Lord Mackay of Ardbrecknish

I thought that I had explained what subsection (4) might be used for. I indicated that it would be used where authorities had decided to discriminate against certain applicants, such as by giving excessive priority to children of their own tenants or by refusing to give proper consideration to applications from single people. I gave those two examples to illustrate that, if such practices occurred in local authorities, the Secretary of State might decide that he should take some action.

I am asked why the Secretary of State is the proper person to do that. Somebody has to take those actions on behalf of the United Kingdom Government who, after all, put a lot of taxpayers' money into public housing. Therefore, it seems right that Parliament and the Government—and the Secretary of State on the Government's behalf—should take a close interest in how that housing is allocated. I said that the Secretary of State is doing that by means of the priorities that are set out in Clause 148(2).

There is a good argument for saying that central government has a role to play in both the detail and the principles. That is the role that this clause seeks to enact. The powers that we are now discussing would be given to the Secretary of State, who is always accountable to Parliament, to use in the future where circumstances have changed and where he decides—in consultation with his colleagues, I have no doubt, and with the agreement of Parliament—that some change should be introduced. That is the reason and I thought that I had addressed it—although perhaps at the end of my contribution, not at the beginning.

Lord Monkswell

Does the Minister recognise that the examples that he quoted would be significantly different in different local authority areas? As I read the clause, I can see no mechanism to enable the Secretary of State to set different priorities in different local authority areas. There would have to be a national scheme. One would have to be careful in drafting such a national scheme to ensure that a scheme that was set up to deal with a particular housing problem in a particular area did not prevent something desirable from happening in another area.

Earl Russell

The Minister used a dangerous argument about public money. Public money goes to all sorts of bodies. It does not follow that the Secretary of State is the best person to decide how that money should be used. Public money goes indirectly to the Royal Shakespeare Company, for example—I am glad that it does—but that does not mean that the Secretary of State is entitled to give directives on how best to play the part of Iago. I would not presume to suggest that he was the person best qualified to do that.

The Minister should think again about this because I do not think that he has entirely understood the question. I shall have to return to it later, by which time I hope that the noble Lord will have thought a bit more about what I am trying to ask him. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

[Amendments Nos. 264ZD to 264ZG not moved.]

On Question, Whether Clause 148 shall stand part of the Bill?

Baroness Hamwee

I take this opportunity to ask a question on the paragraph at the end of Clause 148(2) which provides that, The scheme shall … secure that additional preference is given to households within paragraph (e) consisting of someone"— in the singular— with a particular need … who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future". I am not sure whether the use of singular and plural in this paragraph represents political correctness or whether the words import more than I had understood in the first instance. Is the Minister able to inform the Committee whether a household can comprise one person for the purpose of this paragraph and, if so, whether the "themselves" can be a "himself' or "herself', as I believe is intended?

Lord Mackay of Ardbrecknish

I am not usually accused of political correctness. I doubt whether this is a case of political correctness. Of course, a household can consist of one person; otherwise, a single person would never be housed if he or she was not considered to be a household. This provision is an attempt to ensure that authorities make special provision for the most vulnerable sections of the community. We have in mind here very vulnerable people such as those discharged from psychiatric hospitals or those with learning difficulties who can manage to live independently with a degree of support but cannot be expected to find their own accommodation. Paragraph (e) is in the clause to address that kind of person. I do not believe that there is any significance in the move from singular to plural. I can assure the noble Baroness that it is not a matter of political correctness on my part. It may be political correctness on the part of the draftsman. I will ask about it.

Clause 148 agreed to.

Clauses 149 to 151 agreed to.

Clause 152 [False statements and withholding information]:

Lord Dubs moved Amendment No. 264ZH: Page 92, line 36, at end insert—("unless in either case he has a reasonable excuse.").

The noble Lord said: I beg to move Amendment No. 264ZH and speak also in support of Amendment No. 264ZJ. This part of the Bill is concerned with the offence that may be committed if a person knowingly or recklessly makes a statement which is false or withholds information. The purpose of Amendment No. 264ZH is to provide that it shall not be an offence if the individual concerned has a reasonable excuse for giving false information or withholding information. The purpose of Amendment No. 264ZJ is to lower the level of penalty should anyone be fined for committing this offence.

I speak first to Amendment No. 264ZH. On certain exceptional occasions people may withhold information or possibly give false information for perfectly proper reasons in putting their names on the housing register. I shall give a couple of examples, both of which are in my experience in recent years.

I take, first, the example of a woman with one or two children living on a council estate whose husband was convicted of a criminal offence relating to drugs. Some of his friends believed that his wife had given information to the authorities. They made serious threats against her. She left the flat and found temporary accommodation in another borough. That woman might, in trying to rectify her housing situation, have wished to withhold details of her whereabouts because she was under threat; she might not give full and proper information.

I also came across an instance where a woman who had been battered by the man with whom she had been living sought safety in a refuge and ended up in bed-and-breakfast accommodation. A woman in such a situation might wish, quite properly, to keep confidential either her identity or whereabouts. In both instances those people have to get their names on the register and may wish to conceal information about themselves and their whereabouts so that they cannot be identified by those who may be hostile to them. I am sure that other Members of the Committee can think of similar examples.

For perfectly proper reasons there may be pressure on the individual in exceptional cases not to give full information, and thereby they commit an offence. As my examples show, these people may be victims of violence or in fear of violence, harassment or abuse. They may also be people who as responsible citizens have given information to the authorities or acted as witnesses in the courts and find themselves under threat. Domestic violence is an obvious instance. Sadly, there are quite a number of such cases. All that is required is a small let-out so that it does not automatically become a criminal offence if one has given false information or withheld information. The examples that I gave were not ones where the offence had been committed with a view to furthering a claim for housing which would otherwise not have been valid but for rather different reasons.

I turn now to Amendment No. 264ZJ. This is concerned with the level of fine that may be incurred if a person is found guilty of an offence under Clause 152. Subsection (2) provides that the fine should not exceed level 5 on the standard scale. That would mean a fine in the region of £5,000. That is the same level of fine which can be imposed, for example, on a landlord who commits an offence in connection with failure to ensure safety in houses in multiple occupation. It would be difficult to suggest that the two offences compare in seriousness. A landlord who endangers persons living in houses in multiple occupation may threaten their well-being and possibly their lives, whereas a breach of Clause 152 is surely not as serious an offence.

The proposed amendment would lower the level of the fine from £5,000 (level 5) to £2,500 (level 4), which is surely sufficient for the gravity of the offence in Clause 152. I beg to move.

Lord Mackay of Ardbrecknish

Clause 152 is in similar terms to Section 74 of the Housing Act 1985 (re-enacted in Clause 186 of this Bill) to which we will come later which creates similar offences for applications under the homelessness legislation. Social housing is a valuable asset and it is important that people who seek it should not misrepresent their circumstances. That could cause them to receive preferential treatment at the expense of other applicant households. One of the essential principles behind Parts VI and VII of the Bill is fairness in the allocation of social housing. In order to deter people from making false statements or withholding relevant information it is important to have some sanction in the form of a fine.

Amendment No. 264ZH would moderate each of the two offences created by Clause 152. It would enable someone to make a false statement, or to withhold relevant information, and to avoid committing the offence by pleading "a reasonable excuse". What constitutes a "reasonable excuse" could lead to litigation.

I do not consider that those offences should be watered down in that way. The similar offences in Section 74 of the Housing Act 1985 have stood the test of time. It is a serious matter for a person to gain a public good by misrepresenting his or her circumstances.

Moreover, an application for social housing through the register is a more complex matter than applying for assistance under the homelessness legislation. It is not merely a matter of establishing whether or not the local authority owes a duty to the applicant. The applicant for social housing may want to persuade or induce an authority to believe, for example, that he qualifies to appear on the register or that he warrants greater priority under an allocation scheme than the authority has given him. In practice, the withholding of information—for example, where someone is afraid to disclose threats of violence—is likely to reduce rather than increase the priority that an applicant might otherwise attract. It is unlikely that someone would be penalised for withholding sensitive personal information in that case.

We should remember that the information given to the local authority is to be kept confidential. We discussed that point earlier today. It should not be disclosed to other members of the public. The authority should be able to have the information. There is no good reason under the sensitiveness heading why the information cannot be given.

If an applicant under duress gave information which increased his or her chances of being allocated the accommodation, I am sure that a court would take that into account. Someone has, so to speak, to pull the trigger on a prosecution. I am pretty certain that the local authority would take it into account. Local authorities, after all, have to make the decision as to whether they should bring in the law in that regard. Obviously they will not necessarily and automatically do so in every case. As I have said, they already have powers, and there are very few prosecutions. Local authorities would prosecute only if they felt that it was a deliberate try-on to gain considerable advantage on the list.

As to the maximum fine, we have picked a fine which we believe reflects the seriousness of the offence. Level 5 is generally the right level of penalty for offences of giving false information or withholding information. If one looks across at similar offences, a level 5 fine is what we find. For example, it applies to offences of failing to disclose information requested by the corporation. The seriousness of the offence derives from the degree of intent rather than the consequences.

Because the level 5 fine exists, that does not mean to say that, even if the local authority decides that the case should go to court and the court finds the person guilty, the court needs to fine that person at the top of the level. But it means that if the intent to deceive is serious then a serious penalty exists. I hope that with that explanation the noble Lord can withdraw the amendment.

Lord Dubs

I listened to what the Minister said. I am bound to say that parts of his response seemed to be more in support of the amendments than against them, although his conclusion clearly came out against them.

The Minister said he thought that in some of the circumstances similar to the examples I quoted an individual was unlikely to be penalised. He then said that he thought that the court or the local authority would take such circumstances into account. That was the purpose of the amendment, which adds the words: unless in either case he has a reasonable excuse". It is precisely in order to allow the local authority and the court to take the matter into account and have a sensible statutory basis for doing so that I tabled the amendment. By adding those words one would be achieving precisely what the Minister said he hoped would happen.

My aim is exactly the same as the Minister's. I thought that by putting those words on the face of the Bill in relation to a specific offence I was making the position clearer. I am disappointed that the Minister did not accept that. Will he consider putting the aim, which he and I share, into guidance to local authorities? That might be helpful and might achieve the point of my amendment.

Lord Mackay of Ardbrecknish

I cannot consider it as regards giving guidance to the court if the local authority took the matter to court. However, in the spirit of helpfulness, I am prepared to look at the point which the noble Lord makes. The problem is that when the words appear on the face of the Bill they appear to water down the offence in some way. However, I shall certainly consider what the noble Lord said and take advice.

Lord Dubs

I am grateful to the Minister for his helpful response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 264ZJ not moved.]

Clause 152 agreed to.

9.15 p.m.

Clause 153 [Regulations]:

Lord Dubs moved Amendment No. 264ZK: Page 93, line 10, at end insert— ("( ) No Regulations shall be made under this Part in any case where the Secretary of State is satisfied that discrimination contrary to the Race Relations Act 1976 will result.").

The noble Lord said: The issue of discrimination is likely to arise as a result of defining qualifying persons on the basis of immigration status. We discussed earlier the question of asylum seekers and immigration status. The fear is that, by making local authorities apply fairly rigid tests as regards entitlement to appear on the register and entitlement to be helped in respect of these provisions, discrimination may creep into the process. The amendment would require the Secretary of State to satisfy himself that the proposed regulations did not put local authorities in breach of their statutory duties to provide services without discrimination on the grounds of race.

The Government propose to prescribe categories of persons from abroad who are to be excluded by local authorities from appearing on waiting lists and therefore excluded from being allocated social housing. There is concern that that might lead to some discrimination against black and ethnic minority applicants for housing, even those who in all senses are entitled to appear on the register and be considered for such housing.

The difficulty is that defining the status of a person under immigration law is an extremely complicated business. I doubt whether any Member of the Committee would be totally confident as regards deciding whether an individual in particular circumstances was eligible. The difficulty is that as a result sometimes the regulations lead to mistakes. My concern is that in order to avoid mistakes local authorities might in some instances act in a discriminatory manner.

The difficulty is that there are seven sets of regulation-making powers in this part of the Bill. That is part of the complexity I am addressing. I shall not go through them all but they include, for example, information that is to be held on the housing register; who are and who are not qualifying persons; the cases where provisions about allocations do not apply; and the procedures to be followed in allocations. Those are all complicated matters and when linked to immigration status the potential for wrong decision-making is fairly clear. The fear is that local authorities may indeed discriminate, as I have said. I feel that by adding this provision there would be a greater safeguard and the Secretary of State would have to be assured that the effect of any regulations which he makes would not result in such discrimination. I beg to move.

Lord Mackay of Ardbrecknish

The noble Lord, Lord Dubs, has explained his intention in relation to this amendment. I should start by making it perfectly clear that the Government would not wish to promote any legislation, whether it be primary or secondary, which would result in racial or sexual discrimination on the part of local authorities.

For their part, local authorities are under a general duty, under Section 71 of the Race Relations Act 1976, to promote racial equality and we encourage them to do so.

The Commission for Racial Equality has published a useful Code of Practice in Rented Housing, to which I would expect authorities to have regard. Authorities' housing activities could also fall within the provisions of the Sex Discrimination Act 1975. Were an authority to adopt an allocations policy that was manifestly in breach of its obligations under the relevant non-discrimination legislation it would be open to challenge in the courts. Of course we might consider acting against that by regulation.

The noble Lord raised his concerns about entitlement to social housing which is based on immigration status. He was concerned that that may lead to racial discrimination. I remind the noble Lord that the parallel screening procedures for identifying ineligible applicants in the current homelessness code of guidance were drawn up in consultation with the Commission for Racial Equality. We have not heard any evidence that current screening procedures for persons from abroad have led to any discrimination. The guidance which we expect to publish in relation to Part VI would follow the same model as that already in existence which has been drawn up, as I mentioned earlier, in consultation with the Commission for Racial Equality. With those assurances, I hope that the noble Lord will withdraw the amendment.

Lord Dubs

I thank the Minister for his reply. I am not totally convinced by it but perhaps we had better see how the legislation works in practice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 153 agreed to.

Clauses 154 agreed to.

Schedule 13 agreed to.

Clause 155 agreed to.

Clause 156 [Homelessness and threatened homelessness]:

Lord Dubs moved Amendment No. 264ZL: Page 93, line 31, leave out ("or elsewhere").

The noble Lord said: The purpose of the amendment is to remove a condition, which I understand is novel in our housing legislation, that somebody is not homeless if he has accommodation anywhere in the world.

At present, the stipulation is that an individual must not have accommodation in Britain. But that has now been extended in this legislation to anywhere in the world. I believe that that imposes an almost unrealistic burden on a local authority in terms of finding out whether that applies.

I believe that that provision is too wide. It is liable to have discriminatory implications. In practice it will be very difficult to implement. When I represented a constituency in another place, I remember that the local authority there had questioned somebody's entitlement to housing because it was argued that he had made himself intentionally homeless in Pakistan. That was before this legislation but it caused all sorts of difficulties. As far as I remember, in the end the local authority dropped that particular requirement. However, it was a little difficult for someone, as it were, to establish the circumstances under which he had lived in Pakistan; the circumstances under which he had or did not have the relevant accommodation any more; and whether or not he had left it on the basis of making himself intentionally or unintentionally homeless. It was a complicated matter. I cannot believe that the Government would wish local authorities to have to put applicants through that sort of a test.

What I think would be useful is if the Government could give an assurance that homeless persons officers, when investigating the homelessness status of asylum seekers, will not be required to carry out investigations as to whether it would be reasonable for them to have continued to occupy certain accommodation. That, in a nutshell, is the desirable outcome in all this. If the asylum seeker is then given full refugee status, the Home Office, having done that, will have accepted that the person had a well founded fear of persecution in his own country. Therefore it could hardly be construed that that person had made himself intentionally homeless. The matter would depend on the outcome of such an application. But even if that were not the case, and the person was given exceptional leave to remain, it would still be difficult for a local authority official to determine the basis on which the individual had fled his country to find safety elsewhere. This proposal puts us in a difficult situation. I believe that the amendment, if accepted, would restore the present position. I believe that would be sensible. I beg to move.

Earl Russell

There is sense in the proposition that we are here because we are here because we are here. That proposition applies to the homeless just as much as to anyone else. If someone is homeless in this country, it really will not be of immediate assistance to that person if he may possibly have a place where he might be living in Pakistan or Nigeria, because the person is here and here is where he happens to be homeless. If there is to be an insistence that the person withdraws and occupies the accommodation in Pakistan, Nigeria or wherever, he may have a good deal of difficulty in getting there. That may involve the Home Office finding the costs of deporting the person. That is really quite unnecessary.

We are not only concerned here with asylum seekers. Plenty of people—perhaps British subjects who have gone to live abroad—may perhaps come back to this country for such an innocent purpose as visiting their aged mother. Let us suppose that she dies and the place that she was occupying is on a life tenancy. The person who visited her may find himself suddenly homeless and may need, even if only for a period of two months—possibly for a temporary reason to do with his work—accommodation in this country. I do not see the useful purpose to be served by putting him on the street rather than allowing him to have the same attention paid to his housing need as anyone else who lives here. If people are here, they are here, and the Government have to deal with that fact. They cannot pretend that those people do not exist. This is an excellent amendment and I hope it will be accepted.

Lord Monkswell

In rising to support my noble friend on this amendment, I paint a slightly different scenario. A young man of 19 or 20 is born in this country and has probably grown up here and lived here all his life. However, his parents have emigrated to Australia. For most of his life he lived with his parents. The local authority to which he applies because he is homeless may have to ask that young man whether he has any relatives living anywhere in the world who could put him up. I wonder whether it is really the Government's intention to create a situation whereby an Englishman, who has every right to live in this country, is required to travel to the other side of the world because he can obtain some accommodation there through his family.

9.30 p.m.

Lord Mackay of Ardbrecknish

As noble Lords have indicated, the amendment seeks to remove the phrase "or elsewhere" from Clause 156. The original 1977 Act contained no such definition. The reason for putting the provision into the Bill is that there is no reason why someone who has voluntarily left accommodation in another country in which he or she could have continued to live should be regarded as homeless for the purposes of domestic United Kingdom legislation.

The suggestion was made that the clause could impact on people with family connections outside the United Kingdom but who have lived and worked here for many years and who may have children who were born here. Furthermore, fears were expressed, in this Chamber by the noble Lord, Lord Dubs, and elsewhere, that black and ethnic minority applicants were likely to be affected most, although the noble Lord, Lord Monkswell, seemed to think that it might affect Australians.

That is not our intention, nor do I believe that the provisions can be misinterpreted in such a way. The purpose of the clause as drafted is simply to ensure that a person with accommodation overseas should not be able to leave it voluntarily and then rely on the homelessness legislation to gain a second address in this country. The clause will not interfere with the right to assistance under the homelessness provisions for those applicants who have a right to be housed in the United Kingdom.

The noble Earl, Lord Russell, made much of "he's here because he's here because he's here", saying that one could not pretend that the situation did not exist. Equally, one cannot pretend that a house elsewhere, which that person could perfectly reasonably occupy, does not exist. The house may be in Europe, possibly France. We may all know people who have houses in France or in southern parts of Europe. In what will be only a minority of cases—the number will be small—I do not believe that it is right to turn a blind eye to the fact that the person has a house that he or she can occupy.

For example, last February there were press reports of a woman of dual nationality who had been given a grant under the DoE sponsored "cash incentive" scheme which she used to buy a house in her country of origin. Those grants are no longer available for overseas purchases. She lived there for a while but then returned to this country and subsequently presented herself as homeless. The High Court found that she was owed a duty under the homelessness legislation, a decision which Camden Council described as "bizarre". That is exactly the situation the Government wish to avoid.

We fully accept that a local authority has a duty towards someone returning from abroad who has been made homeless there unintentionally. We have no plans to change that.

As regards asylum seekers, the noble Lord, Lord Dubs, introduced the catch-22 concept. Clause 157(4) states: Accommodation shall not be regarded as available for a person's occupation unless it is accommodation which it would he unreasonable for him to continue to occupy". Clearly, if he pleads asylum on the grounds that he would be under personal threats in his country of origin, where his house was, the subsection of that clause would be his "out"—if I may so describe it. He would not fall to be considered as someone who had a house elsewhere which he could occupy. I fully appreciate that argument. I hope that my reference to the subsection in Clause 157 helps the noble Lord.

Earl Russell

I am surprised at the depth of the localism of the Minister's picture of the world. It is rather like the Hampstead alderman in the days before Camden who said, "Do you mean to say that our ratepayers are paying rates to pay for public conveniences for the convenience of people from other boroughs?" People cross boundaries a great deal more often than the Minister suggests.

Let me take a concrete example. Let us suppose that the present Secretary of State at some future time should be without employment. Suppose at some future time his present house should be burned down. Would it be reasonable to say that the Secretary of State would be entirely unentitled to help because he had a home elsewhere in France? That place is not his normal centre of business, nor where he would look for future employment.

That kind of localism is remarkable. With the increasing freedom of travel in the world, people move about it: they have relatives in some parts of it, business interests in other parts of it, and occupations in other parts. If we are to go back to a world where everyone has to be shut in within their own little boundaries, we will do a great deal to discourage economic growth, culture and interchange. We will go back to a picture of this country under the old Poor Laws where everyone was sent back to their home parish. The Minister shakes his head, but the cases are exactly parallel. If that restraint had gone on, all the economic growth which the country experienced during the Industrial Revolution would have been impossible. It is exactly the same kind of localism as is being put forward here. In neither case is it capable of working. The Minister should notice how the world works. It is not like that.

Lord Monkswell

Perhaps the Minister could help me in the case that I suggested. The parents of a young man of 20 had emigrated to Australia. They have to be contacted by the local authority to see whether they can accommodate their son. They have a reasonable sized house with a spare room, so they are in a dilemma. If they say: "Yes, we can accommodate our son", the local authority will not be required to treat him as homeless. On the other hand, the parents could lie and even though they could accommodate their son, they could say: "No, we can't accommodate him". In that case, the local authority would accept the young man as homeless. But those parents would have been telling a falsehood. Would they be liable for the fine up to level 5 which is delineated in Clause 152? Would they suffer that jeopardy?

Lord Dubs

Having listened to the Minister, I wish that I had Hansard in front of me. I thought he said something interesting when he referred to Clause 157(4), stating that if an asylum seeker made a claim for asylum, it would be all right because the provisions of the paragraph would apply. I was delighted to hear it because he spent most of the earlier debates saying that many asylum seekers did not have a proper claim. In any case, until the claim was properly tested and accepted by the Home Office, they would have no entitlements. I believe that the Minister has made a concession, if I heard him properly. Perhaps he wishes to rebut that.

Lord Mackay of Ardbrecknish

The noble Lord is becoming confused between the homelessness regulations and the right to access to the council house waiting list.

Lord Dubs

No, I am not getting confused. I accepted as a general principle what the Minister said about the right of people who claim asylum to certain entitlements. I thought it was a good principle. However, perhaps I should not pursue it too far in case the Minister withdraws what he said.

There are difficulties. I understand what the Minister said, that if someone clearly has a home and no particular reason to leave it but arrives in Britain asking for accommodation, then there is a difficulty. The trouble is that most examples are likely to be the other way. At the least, they are likely to put local authorities in a difficult position. I give the Minister one example. Suppose a family arrives from Iraq, claiming asylum. The local authority may well say: "We are not sure about your claim, you have a perfectly good house in Baghdad, what are you doing here?" The danger is that an investigation by the local authority as to the circumstances in the country that the people left might well be damaging to them or to other members of their family who are still there. It would cause all kinds of difficulties.

I do not suggest that local authorities would actually do that. They would have the sense not to. But there may be other examples in other countries where a simple investigation which might be innocuous in some countries could be quite lethal in its consequences for the relatives or friends of the individuals who fled. So there are difficulties.

I fear that the Minister is not to be persuaded. He is adding to the statute book a measure that will mean great difficulty for local authorities. It will place upon them a burden out of all proportion to any possible benefit and will do a lot of harm to most people who are affected. I wish to think about what the Minister said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 264A not moved.]

Clause 156 agreed to.

Clause 157 [Meaning of accommodation available for occupation]:

Baroness Hamwee moved Amendment No. 264AA: Page 93, line 43, leave out from second ("occupation") to end of line 45 and insert ("both by him and by any other person who might reasonably be expected to reside with him.").

The noble Baroness said: This amendment seeks to insert slightly different words at the end of the clause, leaving out a reference to people who normally reside with the applicant. The purpose is to ensure that, in assessing whether a person is homeless, account is taken of family members and others, perhaps carers, who do not at that time normally reside with the applicant but who would normally reside with the applicant were it not for a lack of suitable accommodation.

The effect of Clause 157(2) is that a person is homeless if he or she does not have accommodation where he or she can live under the same roof together with other members of the household who normally reside together. The policy is clear: it is to enable people who are separated for want of a home to be treated as homeless, albeit that one or other of them has separate accommodation.

As I understand it, the wording is the same as that in Section 58(1) of the 1985 Act; but there have been problems in practice. The emphasis on people who "normally reside" together excludes those who would have resided together—for example, an engaged couple expecting a child, a family who need accommodation with an elderly parent in order to care for that parent, or a terminally ill person who cannot manage without a live-in carer. The amendment therefore borrows alternative wording from Section 75 of the 1985 Act and, to a very modest extent, widens the scope of those whom the local authority should consider a separated household. I beg to move.

Lord Hylton

This is an important amendment. Perhaps the Minister in replying will say whether the wording of the amendment will cover cases such as that where a child has been fostered or taken into care and where it is extremely desirable that it should return to its natural parents.

Lord Mackay of Ardbrecknish

Clause 157 defines when accommodation is available for a person's occupation. The amendment moved by the noble Baroness would alter the definition of availability so as to refer simply to accommodation being available for occupation both by the person, and by any other person who might reasonably be expected to reside with him". The amendment is unnecessary. As drafted, Clause 157 already provides what the amendment seeks to do; namely, to provide that accommodation must be available not only to the applicant but also to, any other person who normally resides with him … or in circumstances in which it is reasonable for that person to reside with him". for it to be regarded as available for the applicant's occupation.

The amendment would also remove reference to, other persons who normally reside with the applicant as a member of his family", having to be taken into account in determining availability. That removal is not desirable. In fact, it might impinge on the question put to me by the noble Lord, Lord Hylton. While family members of the applicant's household would fall within the wider category promoted by this amendment, it is desirable and appropriate that they should appear as a discrete group on the face of the legislation. So, not only do I not believe that the noble Baroness's amendment is necessary, but worse, I believe that the way in which it would operate, because of what it takes out, would in fact not be desirable. With that explanation, I hope that she will feel able to withdraw her amendment.

Baroness Hamwee

That is helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Baroness Hollis of Heigham moved Amendment No. 264AB: Page 94, line 3, at end insert— ("( ) in the case of a tenancy, he is unable to comply with the terms of the grant of the tenancy and the terms of the tenancy at the time of the grant, having regard to his own resources and such public assistance as is likely to be available to him, or").

The noble Baroness said: I expected this amendment to be grouped with the amendment in the name of the noble Lord, Lord Northbourne. I shall try to be brief, given the lateness of the hour, but it is an important amendment and I do not feel that I should withdraw it.

The amendment seeks to ensure that available accommodation is available. If, for example, the tenant cannot afford to gain access to it, the accommodation is not to be regarded as available. In other words, it is reasonable for him to be regarded as not having access to it.

That problem will occur more frequently with the new conditions of sixth-month shorthold tenancies. First, there is the cost of access in itself. Most private landlords require a month's rent as deposit and then a further month's rent in advance. That means that with the help of friends or family prospective tenants must seek to raise perhaps £800. Having done so, if they can, there is still a second problem of meeting the cost of the rent. Housing benefit comes three or four weeks in arrears—that is assuming that it comes on time. Even so, now housing benefit does not cover the full cost of the rent in 40 per cent. of cases either because the rent is excessive or because the property is regarded as over-large for the tenant.

Further, the new regulations on housing benefit will mean that housing benefit will not cover the market rent for that property but only the local reference rent, which may be considerably lower. Yet we know that 80 per cent. of homeless families need housing benefit.

Put all that together and there will be a growing problem of homeless families who are unable to afford privately rented housing. We need such an amendment to ensure that they are not regarded by local authorities as intentionally or deliberately homeless if they refuse to accept such accommodation, which they cannot afford, or if they leave such accommodation, which they cannot afford, because of the cost of access to it and the cost of staying in it.

I know that the Government believe that if they cap benefit the price of accommodation will fall. The last time that they seriously did that, the opposite was the case. The Salvation Army surveyed the effects of the 1985 capping of bed-and-breakfast payments, whereby, instead of having a maximum by discretion of £110 a head per week, the amount was capped to £70. If the Minister's theory of market economics worked, the cost that bed-and-breakfast hotels charge would fall accordingly. There were something in the order of 780 bed-and-breakfast hotels and as a result of those changes by the Government thereafter only 382 were willing to continue to accept homeless people. Of those 382, only 60 brought their price down to £70 a week. The rest in fact raised their charges by 15 to 20 per cent. The result, as the Minister may know, was that local authorities had a crisis in bed-and-breakfast accommodation.

I hope we are wrong, but we fear that the same thing may happen this time and that capping costs merely takes the accommodation out of the market. It does not reduce its price because it is a landlord's market and there are other tenants who are anxious to rent the property. Therefore, we believe that currently there is and in future there will be a growing problem of people who are unable to afford access to privately rented accommodation or are unable to afford it thereafter. We want to ensure that, if they have to leave the accommodation or if they are given a list of addresses but when they go to inspect the accommodation they find that they cannot afford it, they are not thereby regarded as making themselves intentionally homeless. In all good faith, they cannot afford the rent. I beg to move.

Lord Mackay of Ardbrecknish

These amendments relate to affordability. It would clearly be wrong to assume that someone can continue to occupy accommodation, and therefore not be considered homeless, if he cannot meet the terms on which a tenancy was granted. An obvious case would be where he can no longer meet the.rent himself—for example, as a result of a change in the rent—and the rent charged is above the local reference rent for that type of property, with the result that housing benefit is not necessarily payable in full. The local authority has a discretion (within limits) to top up the benefit, but may judge that that is not appropriate in the circumstances.

The order-making power that we are seeking under Clause 158 is intended to allow us to address such cases. We are reflecting on precisely how to use that power, and the range of cases it should cover. In that context, however, whether it is reasonable for a person to continue to occupy property is likely to cover a range of attributes, including whether the accommodation is of the right size and whether it is (where necessary) affordable for someone on housing benefit. The place to address affordability is in an order, provisions for which are in Clause 158. The more detailed issues raised by these amendments are not appropriate for the face of the Bill.

With the assurance that we will be addressing those issues in the orders we make under that clause, I hope the noble Baroness will feel able to withdraw her amendment.

Baroness Hollis of Heigham

That would be fine if I knew what the contents of the order were likely to be. In other words, can the Minister give us some indication to suggest that there is little distance between us? Though I would prefer it on the face of the Bill, I would have no choice but to accept what he says. Can he give us some indication of his thinking on the matter? Does he accept that, given that housing benefit does not cover, in 40 per cent. of cases, the full cost of rent let alone some of the other costs, that that will not be regarded as grounds for declaring that somebody has made themselves intentionally homeless and therefore the local authority has no responsibility towards them?

The test of excessive rent is an extremely tough one. If a couple without children seek to rent a two-bedroomed flat, that is regarded as excessive space and the housing benefit will cover only a portion of the rent of that property. If there is no one-bedroomed accommodation available and all they have is two-bedroomed accommodation and the couple seek to go into a two-bedroomed flat, by definition they will not receive housing benefit to cover their rent if they are on income support. They are therefore faced with the choice of going without accommodation, having that income support top sliced, getting into debt or being declared intentionally homeless. Can the Minister give us a sense of what his thinking may be and what the shape of the order may look like?

Lord Mackay of Ardbrecknish

I should like to try to be helpful to the noble Baroness; I do not believe that there is a great deal of distance between us. As I indicated in my original contribution, we are currently reflecting on how we can use that power. I am not in a position to deliberate on the direction those reflections are moving. Therefore I cannot be more helpful, though I understand the noble Baroness's anxiety.

This is one of those issues where detail will be needed. It is a matter of balance. Although the noble Baroness gave us a case just on the other side of the balance, in fact many people not eligible for housing benefit have to make a judgment as to what they can afford and temper that against what they would like. Many people have to accept, if they are a couple, that it is economically wiser for them to take one-bedroomed accommodation.

All those matters must be balanced. I could ask the noble Baroness whether she would be content to pay housing benefit to the couple if they decided to move into a four-bedroomed flat in a pricey part of the City of Glasgow or the City of London? Of course not. It is that kind of detail which we need to address, accepting that there may be problems with which we have to deal in the regulations which we will be able to bring forward under the clause.

I am sorry that I cannot be more helpful. If I discover that the process of reflection has continued a little further at the Department of the Environment, I shall certainly write to the noble Baroness.

Lord Monkswell

Perhaps I may raise a problem for the Minister in the sense that he is suggesting that regulations can be made under Clause 158. My reading of the clause is that it refers only to persons being able to continue to occupy. There is no mechanism within it to determine what the requirements would be for someone looking for accommodation. It is not just someone who cannot continue to occupy a place because the rent has gone up or because his financial circumstances have deteriorated; it is also the situation where people are literally homeless and the local authority tells them they are not homeless because private rented accommodation is available. However, they do not have the money for the deposit and they cannot afford the rent. That is what the amendment attempts to sort out. If I have misunderstood the meaning of the amendment or the meaning of Clause 158, I am happy to be fully informed by the Minister.

Lord Mackay of Ardbrecknish

Perhaps it is my fault that in trying to make up examples I have led the noble Lord to the wrong conclusion. The clause is entirely about continuing to occupy the property; it is not about finding accommodation. We also have to take into account when reflecting on this matter that there is a considerable amount of existing case law which obviously has a considerable bearing on giving local authorities guidance.

Lord Monkswell

To rely on case law when we are now writing an Act of Parliament seems a rather curious way of trying to get out of the situation. We are in the process of producing a new Act of Parliament which will presumably supersede the case law built up on the basis of previous Acts of Parliament and the way courts have interpreted them. We are talking about a new law which will supersede and override previous case law.

Lord Mackay of Ardbrecknish

My understanding of these matters is that case law does not necessarily touch on one Act of Parliament and one Act only. It can be read across and it can be read backwards—not literally read backwards but one can look backwards to previous legislation and the case law that comes from it. That, in a way, is why case law is important. With the best will in the world, I do not believe that one can in Parliament legislate for every case. We try to lay down some principles, and case law, ministerial guidance and secondary legislation all have their part to play in the interpretation of those principles.

Baroness Hollis of Heigham

I wish to emphasise one point and then I shall seek leave to withdraw the amendment. The noble Lord speaks throughout as though somehow it is a tenants' market and that if tenants get a two-bedroom flat they can, if they are being realistic, shop around for a one-bedroom flat and get one. It is not like that. I do not know the position in any particular London borough but certainly in the part of the world I come from unfurnished rented accommodation at a reasonable rent that is salubrious and safe is like gold dust. If a recently married couple found a two-bedroom flat that was clean and affordable they would find themselves fortunate. The notion that somehow they can shop around and find a one-bedroom flat is simply not true. The Minister persists in believing that there is equity of bargaining power between tenant and landlord. There is no such thing. The bargaining power is all with the landlord, particularly when one talks about a young couple on income support. The Minister asked me rhetorically whether I would support a young couple going into a four-bedroom flat in Glasgow. If the alternative was being homeless and if there was not a realistic chance of a one, two or three-bedroomed place that they could go to then, yes, I would agree to it. That is the question: what is the supply of accommodation? What is it reasonable that they can seek and get, and can they afford it? If it cannot be afforded, then we need from the Minister an acceptance that that is a reason for saying that the couple have not made themselves intentionally homeless.

This is a very important issue for many young couples, particularly if their financial circumstances fluctuate, given the current state of the economy. We shall have to revisit this matter at Report stage. I hope that the Minister will have a slightly clearer idea that he can share with the House at the moment as to what the Government intend by financial accessibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Earl Russell moved Amendment No. 264AC: Page 94, line 6, at end insert (",or ( ) it is so severely damaged by fire, flood, terrorist action or other cause that it is no longer fit for human habitation.").

The noble Earl said: I do not intend to speak to this amendment. I move it only in order to open up the group behind it. I beg to move.

Baroness Hamwee

That seems to be a hint for me to speak to Amendments Nos. 264CB and 264CC. The first of these amendments is intended to ensure that occupiers of unfit housing are dealt with in a fashion where they are accorded priority for rehousing. The amendment is to add a category to Clause 158 for those who are living in accommodation which the council itself has declared as unfit for anyone to live in. The fitness standard is in Section 604 of the Housing Act 1985. A house or flat will only be declared unfit if the council's own officers are of the view that it is not reasonably suitable for accommodation.

The amendment is intended to avoid the uncertainty which can arise if the council's housing officers certify that a property is not reasonable for continued habitation and designate it as unfit within the definition. Subsequently, when the occupier applies as homeless to the same council, the homelessness officers have to ask themselves whether that is accommodation which it would be reasonable to occupy. The amendment proposes a uniform test when unfit premises are being considered.

Although the second amendment deals with whether it is reasonable for a person to continue to occupy certain accommodation, the situation is rather different. I am proposing that it is accepted as not being reasonable to continue to occupy accommodation if possession proceedings have started, but the person has no defence against those proceedings. This is intended in part as a practical response to a not unusual situation. It is to avoid people who are threatened with homelessness having to go through the ordeal and expense of a court hearing in circumstances where they have no security of tenure and there is no defence against possession being granted. I mentioned costs. This provision will avoid costs generally being incurred and the landlord would claim costs against a tenant in such a situation. I hope also to reduce the load on the court in having to deal with possession orders where there can be no defence, and to save the time of a great many individuals. The current position is that many people are being forced to live in accommodation where there is no security of tenure. By definition, a characteristic of that is that the tenant has no defence against possession proceedings if the landlord takes such proceedings.

The department's own code of guidance on homelessness asks the following questions: Has an applicant with no security of tenure left accommodation following a notice to quit…? Should an applicant have gone to court if it was clear to him/her that there was no defence against possession being granted? In these circumstances the authority should start to process the application and to make (if appropriate) arrangements to secure accommodation immediately". I think that that explains the situation as quickly as I can and I shall not take up the time of the Committee in elaborating on it. My noble friend has moved his amendment, so I hope that that explanation of my amendments is clear.

Baroness Gardner of Parkes

Amendment No. 264CB might be the one on which I can hang the case that I want to raise with the Minister. I refer to the situation where a council is using accommodation in a hotel for many people, including homeless families, but the premises are in an unfit state. I do not know whether they qualify exactly under the categories listed by the noble Baroness, but on 25th April this year, the sub-lessee pleaded guilty to breaches of management regulations and was fined £32,000 plus £5,000 costs. Several statutory notices remain outstanding and works in default are being carried out by the council.

What concerns me greatly is that the council needs that accommodation. Something like 250 people live in that property—not all of whom are homeless—which the officer's report describes as "appalling". The council is advised that if it decides to apply for a compulsory purchase order simply because the landlord flatly refuses to do anything and the council is having to carry out some works in default, there is a strong possibility that it will be obliged to pay substantial compensation for the loss of business. The amount quoted is approximately £1 million.

It seems scandalous that a person running an unfit property and ignoring or refusing to comply with council orders then has the right to compensation. I wonder whether the Minister will consider introducing further provisions under this clause to cover such situations. It seems wrong that if the property is not run in accordance with the standards that are expected and necessary and if regulations and notices are simply flouted, the sub-lessee should then be entitled to claim massive sums of money in compensation, resulting in the council being unable to proceed to make the property fit for human habitation. I feel that that point relates to the amendments in the name of the noble Baroness, Lady Hamwee, although not specifically connected with them.

Lord Mackay of Ardbrecknish

These amendments all relate to the availability of accommodation for occupation and to whether it is reasonable to continue to occupy those premises. In deciding whether or not to accept a person as homeless, a local authority takes account of the quality of the accommodation that the person is occupying. If it is not reasonable for him to occupy or to continue to occupy it, for example because of its physical condition after fire, flood or terrorist action—as in Amendment No. 264AC, which was not spoken to—the authority owes that person a duty under the homelessness legislation.

Fitness is, of course, a matter of degree. The Government would not wish to suggest that authorities should be aiming for anything less than property that complies fully with the fitness standard. Nevertheless, one must be realistic. Being unfit in one particular regard does not necessarily mean that the property is not "reasonably suitable for accommodation". For example, in an early case on this subject it was held that a broken sash cord on one window of a property led to statutory unfitness, although it was not suggested that the property should be abandoned as a result. In 1991, there were around 1.5 million properties that were in some way statutorily "unfit".

This amendment would, if accepted, place local authorities under much more severe restraints on the sort of accommodation they could use for discharge of duty and oblige them to use more expensive alternatives. Clearly, this would result in an impossible situation, with considerable knock-on effects. For example, the noble Baroness, Lady Hollis, has reminded me on one or two occasions that this is not a perfect free market in terms of supply. If this amendment were accepted, local authorities would face a very difficult situation. More broadly, local authorities are, and will continue to be, required to provide suitable accommodation which must take into account the state of repair of the building.

Baroness Hollis of Heigham

I hope that the Minister will forgive me for interrupting him. The law on this matter is quite clear. A house may be unfit if it does not meet the eight-point, 10-point standard, 16-point standard, or whatever. The test is whether the property can be made fit at reasonable expense. In the example that the Minister gave of a broken sash cord, clearly the property could be made fit at reasonable expense and therefore that would not be an issue.

Lord Mackay of Ardbrecknish

I was not exactly praying that case in aid as a fundamental defence of my position in not accepting the amendment. I was just illustrating some of the problems that could arise in discussing whether a property was fit or unfit.

The point to which I was turning when the noble Baroness rose to speak was that local authorities would continue to be required to provide suitable accommodation which must take into account the state of repair. The word "suitable" is defined in Clause 183 of the Bill, which includes order-making powers. There is a considerable amount of case law as to what is defined as "suitable".

Amendment No. 264CC relates to proceedings for possession. The homelessness code of guidance makes clear that authorities should not require applicants to fight possession orders where there is no chance of success before accepting that a household is being threatened with homelessness. The Department of the Environment's recent study on evaluating the code found that almost all—something like 94 per cent.—authorities would take a notice to quit or notice of seeking possession as evidence of impending homelessness. There are, however, many different forms of tenancy and of grounds for possession. There are also many defences which can apply in particular cases. Given that existing arrangements are shown to be working well and can be re-enforced in new guidance, the Government do not wish to introduce a new requirement which at the margin in a difficult case would require the local authority to anticipate the decision of the courts.

The Housing and Planning Act 1986 amended Section 69 of the Housing Act 1985 to require authorities to have regard to the parts of that Act which deal with slum clearance, overcrowding and houses in multiple occupation. The new order-making powers in Clause 183 will allow the Secretary of State to specify further 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. The appropriate place for further defining the suitability of accommodation is in that order, not on the face of the Bill. I do not think that Amendment No. 264CC is desirable.

My noble friend Lady Gardner asked me a question, on which I find it difficult to comment in terms of the particular case she has raised. Broadly speaking, local authorities have a duty to take action in respect of properties in their area which fail the test of fitness for human habitation. Under provisions of the 1985 Housing Act, to tackle an unfit property an authority may require the owner to carry out the repairs (as the noble Baroness, Lady Hollis, said in her intervention) or, in extreme cases, require closure or demolition. Another possible option is a compulsory purchase order. I am not an expert on housing policy and law, and I do not wish to go any further than that this evening. However if my noble friend wishes to give me further details I will consider the points that she has raised and write to her.

To return to the amendments, I have drawn the attention of the noble Baroness to Clause 183 and the position therein. I have explained what I hope is the present reasonable position and is likely to be in the future. I hope that those involved in these three amendments will feel able to withdraw them.

10.15 p.m.

Lord Monkswell

Before the Minister sits down, will he copy the letter that he might be sending to his noble friend Lady Gardner of Parkes, because I, too, am interested in how someone who is apparently operating a business illegally can walk away with 1 million for his troubles when the council feels that the business should be taken over and run properly? A number of us will be interested in the Minister's answer to that.

Lord Swinfen

Before my noble friend sits down, is there any possibility that the case raised by my noble friend Lady Gardner of Parkes could be sub judice?

Lord Mackay of Ardbrecknish

I should have to look at that before I replied to anyone.

Baroness Hollis of Heigham

Try parliamentary privilege!

Lord Mackay of Ardbrecknish

I doubt whether parliamentary privilege covers a letter from me to my noble friend or even the noble Lord, Lord Monkswell, to whom I shall happily copy the correspondence.

Baroness Hamwee

I am not entirely sure whether, in referring to this ubiquitous guidance, the Minister is indicating that he goes along with the thoughts which I have expressed. In particular, is Clause 183, which deals with suitability of accommodation, an appropriate reference when one is dealing with an applicant who faces repossession and has no defence to that? I am not immediately persuaded that the two clauses interlink in a way which is as effective as I should like to see.

The Minister referred to 94 per cent. of local authorities apparently following the section of the code of guidance which I quoted. I am not sure whether he is suggesting that that should be reproduced and that the other 6 per cent. should be persuaded that they should take the same attitude. I do not know whether the Minister can give me any further indication that he has, at any rate, sympathy with the points that I am making.

Lord Mackay of Ardbrecknish

I see the point that the noble Baroness makes. Shortly after I talked about the 94 per cent. which would take a notice to quit or a notice seeking possession as evidence of impending homelessness, I said that there were different forms of tenancy and different grounds for possession. We would not wish to introduce a requirement which, at the margin in difficult cases, would require a local authority to anticipate the court's decision. Of course, we could use an order under Clause 157 in relation to possession orders if we wished to.

Earl Russell

When John Locke in 1681 drew up the first Whipping lists for this place, he classified noble Lords of the day under V for vile, W for worthy, and in more extreme cases, VV and WW: and in the most extreme cases VVV and WWW. Listening to the Minister's reply to my noble friend Lady Hamwee, I wonder whether we should classify properties as unfit, very unfit, and very, very unfit. But I shall not follow the Minister any further into that thicket.

The amendment formally before the Committee at the moment is my Amendment No. 264AC. I put it down solely because I hoped to hear the Minister say that it was unnecessary. He did. I should like to thank him for doing so, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 157 agreed to.

Clause 158 [Whether it is reasonable to continue to occupy accommodation]:

Earl Russell moved Amendment No. 264B: Page 94, line 12, after first ("from") insert ("or to").

The noble Earl said: In the absence of the noble Lord, Lord Northbourne, and with the leave of the Committee, I should like to speak briefly to the amendment and with it to Amendment No. 264C which is practically the same amendment. The amendment seeks to amend Clause 158(1) which in its present form says a person cannot be required to occupy premises if their occupation will lead to violence from some other person residing in it. The noble Lord, Lord Northbourne, has sought to add the words "or to" after the word "from". The effect would be to extend the protection offered by the clause to people who have been victims of ouster orders under Clause 4 of the Family Law Bill. Members of the Committee who have followed that Bill know that this is a very necessary power and will welcome it warmly.

However, it is an extreme power and if, after men have been subject to ouster orders and have had to leave, they are then to be found to be intentionally homeless one might think that that had something in common with double jeopardy. The campaign against domestic violence is necessary and I am glad to say that it is gathering steam. However, if it is to be successful it must be pursued with concern for safety and justice.

It must not be allowed to become vindictive. That is why the noble Lord, Lord Northbourne, tabled these proposals. I am glad that he did so. I beg to move.

Baroness Hamwee

Perhaps I may speak to Amendments Nos. 264BA and 264CA which remove the condition that the violence must be from a person residing in a dwelling. The two amendments stand in my name and that of the noble Lord, Lord Dubs, who has referred to the unhappy position of someone fleeing from domestic violence. I too have known that a violent husband—it is often the husband—will continue to pursue his wife despite the separation. There have been some horrendous experiences in, for instance, women's refuges where a husband, unable to accept the fact of separation, has appeared and threatened violence and has been violent. That situation should be accepted in the drafting of the provision.

Lord Mackay of Ardbrecknish

We fully accept the important role of the homelessness legislation in providing assistance for those fleeing domestic violence. When this Bill was considered in another place my then honourable friend, now my right honourable friend, the Minister for Housing accepted the proposition made by the honourable Member for Greenwich that perhaps the present provisions do not cater adequately for all circumstances as they relate only to violence within the home. He agreed to consider what more might be done to safeguard the interest of those women who are under threat of violence from a former partner no longer living there. Subsequently he wrote to the honourable Member for Greenwich confirming that we would be bringing forward amendments at a later stage to extend the domestic violence provisions so that a person would be regarded as homeless if he, or more usually she, were under threat of violence from a partner or former partner whether or not he was living at the same address.

I regret that owing to the changed timetable for the consideration of this part of the Bill we have not yet been able to table those amendments, but it remains our intention to do so. I imagine that means that we shall do so on Report. I hope that that explanation goes a long way to addressing the problems. However, it does not go the whole way in addressing the concerns expressed by the noble Baroness, Lady Hamwee. She would like the provision to extend to any violence, whoever the perpetrator. I must say that I have some difficulty going that step further. If a person experiences violence or abuse outside the home there are many more remedies open to them, and to the authorities, to help deal with the problem than are available to someone experiencing domestic violence. Threatening behaviour and assault are already punishable offences under criminal law; if people are caught in the net they will be arrested. It would not be unreasonable to ask someone experiencing violence outside the home to pursue available legal remedies in the first instance.

The court will be able to attach a power of arrest to injunctions obtained by social landlords where there has been violence or threats of violence. Therefore, I hope that the noble Baroness will accept my assurance that we shall address the central part of her concerns.

The amendment proposed by the noble Earl, Lord Russell, on behalf of the noble Lord, Lord Northbourne, would have a different effect. The noble Earl is asking that the perpetrator of violence should be capable of being regarded as homeless and entitled to assistance under the legislation.

I cannot accept that. There are remedies in law for excluding a violent partner from the family home. In the absence of those, it would be open to the victim, or potential victim of violence, to flee the home, seeking assistance under the homelessness legislation initially and subsequently seeking to gain sole access to the property through the courts.

To give someone the right to be accommodated under this legislation if, of his own initiative, he offers violence would be a licence, if not an incitement, to commit acts of violence. That is not sensible and I do not believe it is what the noble Earl or the noble Lord, Lord Northbourne, are seeking.

There may be circumstances in which someone suffers a real mental breakdown and needs to be removed from his home for both his own safety and that of others. In those circumstances, there may be a case for assisting him to find other accommodation. If he left the property voluntarily but in the interests of the safety of others, it may be that the local authority would take the view that he was not intentionally homeless and would therefore be willing to offer him assistance under the homelessness legislation.

I hope that the noble Earl will understand why I cannot feel able to accept the amendments, but I assure the Committee that I shall return to the issue of domestic violence on Report.

Earl Russell

On behalf of my noble friend Lady Hamwee, as well as on my own behalf, I thank the Minister for the reply to my noble friend which I was very glad to hear.

However, the second part of my noble friend's amendment raises wider problems than those which we discussed. Those problems interact with those raised on the social protection amendment of the noble Baroness, Lady Hollis, which was discussed last night. The Minister is quite right that there are all sorts of other ways in order to protect people. But as we discovered last night, they do not always work. There is a case for a fall-back which is worth further thought.

On the amendment of the noble Lord, Lord Northbourne, which I moved, it is rather misleading to describe being forcibly excluded from one's home as an incitement to perform the act which led to it. The exclusion is a severe punishment but a right one. The Minister knows that; I need not repeat it. But once that is done, the person who has been excluded still exists. Being accommodated under the homelessness legislation is not so attractive that it is likely to be an incitement to anyone.

Since many women remain compassionate towards the men who have done these things, often unwisely compassionate, if there was some sort of place where those men could go rather than sleep on the streets, women might be more ready to employ the powers given to them under Section 4 of the Family Law Bill than they would otherwise be. Therefore, the system might work a good deal more effectively and humanely if that power were included in it. but I certainly shall not press the point this evening and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 264BA to 264D not moved.]

Clause 158 agreed to.

Clause 159 [Duty of local housing authority to provide advisory services]:

The Chairman of Committees

In calling this amendment, I must point out that if Amendment No. 264E is agreed to, I cannot call Amendment No. 265.

[Amendment No. 264E not moved.]

10.30 p.m.

The Chairman of Committees

Amendment No. 265 not moved.

Lord Swinfen

I would actually like to move Amendment No. 265 if I may, but I shall do it as briefly as possible.

Lord Swinfen moved Amendment No. 265: Page 94, line 28, at end insert ("taking into account the particular needs of people with physical, mental and sensory disabilities").

The noble Lord said: The amendment is designed to ensure that the needs of disabled people are taken into account by local authorities when they secure that advice and information about homelessness are available to every person in their district.

Disabled people, including those with physical, mental or sensory disabilities, have a range of particular needs when seeking housing information and advice. The premises of agencies giving advice and the format in which advice is available must be accessible to disabled people. This not only means, for example, that office accommodation is wheelchair accessible but also that information is available in accessible formats for visually impaired people.

Many advice organisations, statutory and voluntary, are aware of these needs and cater for them in their provision. However, the inclusion of this amendment will make apparent the particular needs of disabled people and ensure that local authorities guarantee that all advice agencies make suitable arrangements. Housing advice is particularly important for disabled people because of the need for suitable housing related to their particular disability. I beg to move.

The Chairman of Committees

I must apologise to the noble Lord, Lord Swinfen. He was sitting there most patiently, as always.

Lord Mackay of Ardbrecknish

This amendment in the name of my noble friend Lord Swinfen seeks to require local housing authorities, in providing advisory services on homelessness, to take into account the particular needs of people with physical, mental and sensory disabilities.

The new provisions requiring authorities to secure that advice is available are not intended to be unduly prescriptive. It will be for each authority to determine how best to fulfil this duty, and how best to take account of the special needs of any particular group of people. That includes the particular group my noble friend is concerned about. The Government would not wish to see further prescription on the face of the Bill, but, rather, intend to issue guidance on the provision of advisory services. This will enable a fuller explanation to be given to authorities of the particular needs of the various groups, and to direct authorities towards best practice for dealing with those needs effectively. I am sure that guidance is the more appropriate and flexible vehicle for tackling such issues. I hope that with that assurance and explanation of how we propose to deal with this issue my noble friend will feel able to withdraw his amendment.

Lord Swinfen

I thank my noble friend for his response to the amendment and will certainly withdraw it. I hope that the Disability Discrimination Act we have recently passed will help go a long way to satisfying my demands. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 265Z4 and 265ZB not moved.]

Clause 159 agreed to.

Clause 160 agreed to.

Clause 161 [Terms and conditions of assistance]:

[Amendments Nos. 265ZC and 265ZD not moved.]

Clause 161 agreed to.

Clause 162 agreed to.

Clause 163 [Application for assistance]:

[Amendment No. 265ZE not moved.]

Clause 163 agreed to.

Clause 164 [Inquiry into cases of homelessness or threatened homelessness]:

[Amendments Nos. 265ZF and 265G not moved.]

Clause 164 agreed to.

Clause 165 [Persons from abroad not eligible for-housing assistance]:

[Amendments Nos. 265ZH and 265A not moved.]

Lord Dubs moved Amendment No. 265AA: Page 96, line 35, at end insert— ("(1) 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: During debate on the amendment dealing with whether or not people had accommodation abroad, the Minister reassured the Committee by saying that if an asylum seeker had accommodation elsewhere but had fled for safety, the provisions of the Bill would cover his application. Yet Clause 165 denies that proposition. The amendment seeks to ensure that any claimant who pursued an appeal under the Asylum and Immigration Bill would be eligible under this part.

I agree that the issue is a little narrower than the point made earlier by the Minister. However, the amendment deals with the difficulty that arises when a claim made by an asylum seeker has been turned down and, quite properly, the asylum seeker exercises his right to appeal against that decision. In a number of instances he will win his appeal. The difficulty is that there is a gap in terms of entitlement under a range of provisions between the Home Office turning down the application and a successful appeal. The period of the appeal process can be lengthy. The amendment ensures that during that period an asylum seeker would not lose his entitlement under this part of the Bill. We believe that that is natural justice; otherwise we deny people the right which they may win back if the appeal is successful. They may experience serious housing difficulties during what may be a lengthy period.

It is a difficulty which runs through the Government's proposals on asylum. However, it is in sharp relief in this provision. I assume that people would lose any accommodation that they might have obtained from the date that the Home Office informs them that the appeal has been unsuccessful. Presumably upon winning an appeal, those people will gain the accommodation back. The situation is confusing; it is unsatisfactory. The amendment would make the position clearer. I beg to move.

Earl Russell

The right to appeal against an unfavourable asylum decision is becoming a little like the proverbial right to have tea at the Ritz: everyone has the right to do so, and a great many people are unable to do so.

The difficulty in exercising legal rights is a constant phenomenon. We do not want to make it any worse than it is. If the right of appeal is to remain meaningful, the right to live somewhere while one exercises that appeal necessarily has to go with it.

It is a little difficult to serve papers in "cardboard city". Addresses within it are flexible. While the Minister admires flexibility in all sorts of places, I do not think that he takes his admiration quite that far.

Lord Hylton

I support the amendment. It seems quite wrong that a person should be consigned to a housing limbo, or possibly a housing hell, simply because he or she has exercised his or her right of appeal under asylum and immigration law.

Lord Mackay of Ardbrecknish

Amendment No. 265AA, which the noble Lord, Lord Dubs, moved—he did not speak to the other amendments grouped with it—would prevent persons who were appealing an adverse decision by the Home Office on their asylum claim from being prescribed in regulations as ineligible for assistance under Part VII.

Perhaps I may go back a step and remind the Committee of where the amendment arose. When people apply for asylum at the port of entry they are eligible for benefits. They are also eligible for consideration under the homelessness legislation. We got into difficulty earlier with that, but I am clear about it. Those people who apply in country are eligible neither for the benefits nor to be considered under the homelessness legislation. After some months—we hope fewer with each passing month—the Home Office makes a decision. If it is adverse—for example, in 1995 it was adverse in 79 cases out of 100—and does not grant refugee status or exceptional leave to remain, the next step for that person is to appeal.

I shall be quite open about it. I have already explained to the Committee that one of the problems is that it is a no-lose situation for the asylum seekers. Until recently, if they put in an appeal, they simply stayed on benefits and were considered under the homelessness legislation for as long as the appeal took. It could take quite a time, partly because of the considerable numbers we have experienced coming to the country, and also partly because in a number of cases the applicant was able to spin it out by asking for adjournments. So there was almost a perverse incentive for people to appeal and draw out the appeal because it enabled them to remain in the country with benefits.

The Government decided that, given the number of people who at the end of the appeal procedures are found still not to merit refugee status, we had to act against a clear abuse of the system. The outcome of the appeal procedures in 1995 was that only 3 per cent. were successful. Yet all the others could have eligibility to benefit.

In the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 which your Lordships approved and which came into effect last February, the changes we made mean that asylum seekers who have received a negative decision on their asylum claim are not entitled to benefit. That includes housing benefit. It encompasses all those who appeal against the decision. As an aside and for clarity, asylum seekers who make their claim for asylum in-country rather than at the port on their arrival here are not entitled to housing benefit at all.

We are squaring the homelessness legislation with the decision that we have already taken in the social security legislation, in particular on the housing benefit system, where payments are not made during the course of an appeal. The amendment would mean that a person could, on appeal, continue to claim under the homelessness legislation and the local authority would be obliged to assist them. That would run contrary to the principles of the policy which we have brought in regarding entitlement not only to the benefit system but also to homelessness. For all the reasons I have argued in the Committee today and previously, we cannot move in that direction.

I am asked by the noble Earl, as I have been asked on a number of occasions, "What happens to people in those circumstances?". My answer remains the same. They are in no different position than they have been in until now when after some time their appeal was turned down, as it was in the vast majority of cases. They are no longer eligible for any of the benefits or for consideration under the homelessness legislation. It may well advance that day, but it does not change the arithmetic to any great extent. The majority currently are left at the end of the appeal process in exactly the same position as the noble Earl described. As I have argued before, I believe that by taking this step we will concentrate the minds of people who appeal. We will remove the perverse incentive to appeal. We hope we will then be able to deal with backlogs and process applications and appeals much more quickly than we have been able as the numbers have built up over the past decade. So while I understand the noble Earl's point, I believe the position that the Government have taken is entirely consistent and logical and accords with the figures that we have seen over the past few years.

10.45 p.m.

Earl Russell

I am sorry; I am afraid that the Minister's reply to my argument is not true. These people are not in the same position as those whose appeal has been taken through a hearing and they have lost. The difference is that these people, if they are destitute—as they normally are by this time—cannot leave the country as they do not have the means to do so; whereas people whose appeals have failed can leave the country at Her Majesty's expense or, I believe, sometimes at the expense of British Airways. They can be deported. But we are dealing here with people who cannot be deported; they do not have the means to leave the country; and, because they are trapped in this country, any support they may get will be in this country.

Can the Minister show me anything in his proposals as he advances them which discriminates between those whose appeals are found to be justified and those whose appeals are not found to be justified? I do not quite see how he could do that, because we do not know until the hearing takes place whose appeals will succeed and whose will not.

I was brought up in the belief that it is better for 99 guilty people to go free than for one innocent person to be condemned. I know that nowadays that is regarded as an old-fashioned view, but I afraid that I still hold to it. The requirements of justice demand it. That principle applies equally to those who are seeking asylum and have appealed against a refusal.

If anyone else were to introduce restrictions on the judicial process quite this sweeping, Ministers might possibly consider accusing them of a conspiracy to pervert the course of justice. I do not intend to do that. However, I do believe that this measure is a very severe hindrance to the course of justice. The Minister has made out no case for it, except one that rests on a presumption which in some cases is certain to be false; and he has no idea in how many cases it will be false, or indeed in which cases it will be false. The logic of that position is very poor indeed.

Lord Dubs

I wish to make two points in relation to the Minister's remarks. First, whatever the argument about the number who will, or will not, win an appeal—I concede that at present the majority do not—the fact is that the justice of an appeals system is denied. If people are unable to function, if they have nowhere to live while awaiting an appeal, then it may be very difficult for them to stay in this country and exercise their right of appeal.

As the noble Earl said, there are wider issues at stake than simply the technical point made by the Minister that people are using the time it takes to reach appeal as a way of staying here. The implication is that some appeals have not been very well founded.

Justice has its price. The price of justice is surely protection of the rights of all individuals so that those who will win an appeal are not penalised because of others whom the Minister says should not have their rights while waiting for the appeal date.

My second point concerns the number of people who will be affected. I am trying to remember some of the details of the Asylum and Immigration Bill, with which the Minister will be as familiar as anybody. It contains changes to the appeals system as a result of which fewer people will be allowed to exercise an in-country right of appeal than would have been able to do so. The Minister's argument loses some of its force if the Asylum and Immigration Bill goes through in its present form. Therefore the rights of justice would seem to me to loom larger than they might otherwise have done.

The Minister's position is not very convincing. I wonder whether he would care to comment on the fact that the effect of the Asylum and Immigration Bill will be to reduce the number of people who can give effect to a right of appeal in this country and therefore he need not be so worried as he said he was about people who might be abusing the system in his terms.

Lord Mackay of Ardbrecknish

I am having some difficulty at the moment in running two Bills at the same time. I am afraid that I cannot immediately give the noble Lord an answer to the particular point he raised at the end of his remarks. It is certainly true that anyone who appeals in country for asylum does not receive any benefit and is not eligible to be considered under the homelessness legislation. They are still considered by the Home Office for eligibility for asylum or exceptional leave to remain. Certainly, if they are refused, they are able to appeal, although they still do not get onto the benefit system. Perhaps the noble Lord is thinking of the fast tracking system. That is what I jotted down. To be honest with the noble Lord and the Committee, I cannot just recall the appeal procedure on the fast track, and so I cannot confirm or deny what he said.

I was beginning to wonder whether the lateness of the hour was affecting the noble Earl when he asked how I could tell who was going to be successful and who was not. I then realised that he asked the question in order to answer it himself; the answer being, of course, that I could not tell. That is true. If we could tell, we should have been able to make a much finer judgment on the whole question of asylum seekers and their continuing right after they had been turned down by the Home Office for the first time. Would that there were a method by which we could look into the future and foretell the outcome of their appeal! But there is not. I do not feel that it is a question of guilt or innocence. It is simply a matter of whether or not the person satisfies the various international legal definitions which give them the right to be considered as asylum seekers or give them exceptional leave to remain in this country. I do not believe that it is quite comparable to the law.

Moreover, it means that people from abroad—asylum seekers—are put on all fours with ordinary citizens of the United Kingdom who wish to appeal against a decision on benefit. As Members of the Committee will know, during the course of that appeal UK citizens whose application for benefit has been turned down do not get benefits. So, in fact, persons from abroad seeking asylum to that extent are on all fours with United Kingdom citizens lodging benefit appeals.

I know that both noble Lords who have spoken do not agree with me on that point. We have been over it a number of times and I have tried to explain the logic of the Government's position, which I believe is well founded. If we could only get the numbers down and begin to clear cases much more quickly than we are able to do, with the very considerable numbers who have been coming over the past few years, we should be able to make much more rapid decisions.

Earlier today, one noble Lord pointed out, in response to a suggestion that people could disperse themselves around the UK, that people from abroad—asylum seekers—by and large want to live in that area of the country (usually in the city) where their compatriots have settled and will be around them. It seems to me that in the majority of cases it is to those compatriots that people can and do look for sustenance during the course of their appeal and indeed during the course of their original application if they apply in country.

Earl Russell

At this time of the night it was a little perverse of the Minister to tempt me and the noble Baroness, Lady Hollis, into the byway of discussing the way appeals against refusal of benefit are treated in this country. I shall resist that temptation.

I am grateful to the Minister for his admission that he cannot know whose appeals are going to succeed. In making that admission, he admitted that he is going to do injustice to genuine claimants. Having made that admission, he should withdraw the Government's proposal.

Lord Dubs

I do not find the Government's argument to be in any way persuasive—not because he is not totally familiar with the details of the legislation (I am sure none of us are on top of the details of that), but in terms of the principles the amendment seeks to address. But perhaps I can make one brief point.

It is not good enough to say that because refugees and asylum seekers coming here are supported in many instances by refugee community organisations, those organisations can look after the consequences of people who have nowhere to live because of the Government's measures. With the best will in the world, refugee community organisations are poor. They provide valuable work for asylum seekers and refugees and valuable support in a cultural, linguistic and religious sense. They do not normally have the resources with which to house people and it is disingenuous of the Minister to suggest that. He is not to be persuaded. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 265AB to 265ZBA not moved.]

Earl Russell moved Amendment No. 265BA: Page 96, line 39, leave out subsection (3).

The noble Earl said: This amendment proposes to delete from the Bill the condition which ties entitlement to help with homelessness to the housing benefit regulations. At the same time I should like to speak to Amendment No. 265BB grouped with it, which states: The regulations shall not apply to a person who is not unlawfully in the United Kingdom".

That seems to me to be the nub of the whole issue. If people are entitled to be here, then they are entitled to help. Indeed, one might say that if they have to be here, they are entitled to help.

It does not make sense to let people come here and then make them starve when they have got here. I simply cannot understand why the Government think that those are consistent things to do. Or at least I can understand it: they cannot deny those people the right to come here because they are bound by international law; but they believe, quite possibly wrongly, that they are not bound by international law to afford them any social protection when they come here. That will become a matter of a great variety of cases in a great variety of international tribunals, and the Government may well lose some of them.

I really must say that of all the things British governments have done in my lifetime, I cannot remember any which have made me quite so ashamed of my country as this has done. I beg to move.

11 p.m.

Lord Mackay of Ardbrecknish

Perhaps I may first apologise to the noble Earl. I tempted him into thinking that he had to deal with Amendment No. 265B because I had it mixed up in my notes with the two amendments to which he has just spoken.

We have already gone over a good deal of this territory. The main purpose of the provisions on eligibility for assistance under Part VII is to enable entitlement to assistance under the homelessness legislation to be aligned with entitlement to housing benefit.

Since 1994, under social security regulations, certain categories of person from abroad have not been entitled to housing benefit. The descriptions of person that the Government intend to prescribe in the regulations under Clause 165 as being ineligible for assistance under Part VII will be precisely the categories of person who have no entitlement to housing benefit. In other words, we are aligning the two descriptions—the homelessness description with the housing benefit description.

Broadly, these are: first, a person who requires leave to enter or remain in the UK under the Immigration Act 1971, and who is: an illegal entrant, an overstayer or a person given temporary admission; or a person who sought asylum after entering the United Kingdom (except where an asylum claim is made within three months of a declaration by the Secretary of State that his country of origin has undergone an upheaval) and who has no other leave to remain in this country; or a person whose claim for asylum has received an adverse decision by the Home Office—we have already discussed that case—or a visitor, student or other person given limited leave to enter or remain on the basis that he could support and accommodate himself without recourse to public funds; or the subject of a sponsorship agreement made within the previous five years, and whose sponsor is still alive; secondly, a person from abroad who fails a test of habitual residence in the UK; and, lastly, a person who is a citizen of a member country of the European Economic Area, and who is in breach of a European Community right of residence directive.

Those are the categories we propose to deal with in the regulations. It is important that entitlement to homelessness assistance and entitlement to housing benefit are in alignment, not least because of the implications for housing authorities' costs if they are not. To secure that aim we need the very provision that the noble Earl would in a rather narrow way attempt to remove. Amendment No. 265BA removes a secondary, but nevertheless important, provision which allows the regulations to make reference to the housing benefit regulations.

We have been over this ground today on a number of occasions. I rather fear that the noble Earl and I will not persuade each other. I have explained why we believe the entitlements ought to be aligned and I have given a very clear description of the categories we intend to bring within the scope of this part of the Bill. While I do not expect my arguments to win over the noble Earl, I hope he will be prepared to withdraw his amendment.

Lord Hylton

I should like to invite the Minister to reflect between now and the next stage of this Bill or between now and the appropriate stage of the asylum Bill on the situation of those people who come to this country with the intention of claiming asylum but who fail to do so at the port of entry. There are many good reasons why they should fail to do so. For example, they may be in total ignorance of British asylum law; they may lack any command of the English language; or there may be no interpreters at the port of entry at the time they arrive. Those are the kind of reasons why people sometimes fail to make their application at the point at which they are supposed to make it. Many of them then go on to apply for asylum within a reasonable period after arrival.

Earl Russell

In trying to persuade me that I should follow the example of the housing benefit regulations, the Minister is trying to convince me that two wrongs make a right. I am not persuaded of that. I say one thing more to him. He occasionally reproves me for raising arguments about powers by saying, "No British government would ever do this." He is here doing something which, as recently as two years' ago, I believed, with the greatest confidence, no British government would ever do.

The most improbable examples I use in that area seem to me no more improbable than this seemed to me only very recently. I do not expect that I am going to persuade the Minister any more than he expects to persuade me. Since this seems the wrong time of night to have recourse to the Division Lobby, there is nothing else I can do but to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265BB not moved.]

Earl Russell moved Amendment No. 265BC: Page 96, line 42, leave out subsection (4).

The noble Earl said: This amendment deals with the position of spouses of asylum seekers. It is quite familiar ground that under the 1977 legislation single people do not enjoy a claim to priority homelessness. Clause 165(4) states that, no account shall be taken of any other person… [who] resides…if that other person is a person from abroad who is ineligible for housing assistance".

In other words, if one marries an asylum seeker one is treated as being single. I do not usually spend a great deal of eloquence on the defence of the family, but I believe that people who want to live in families should be allowed to do so without wanton attempts by the state to prevent them.

People who wish to marry asylum seekers, as they do from day to day, should have just the same rights to be able to have a family, live at peace with it, and enjoy the protection of the state, as any others. By making spousal contact with an asylum seeker an infectious condition like a kind of plague so that it puts one out of the protection of the state the Minister is doing something which has racial connotations which I find extremely unsavoury. I am sure that that was not the intention. I am sure that it was the usual Treasury intention which simply does not take into consideration these categories at all. But that is the effect of what the Government are doing. It is an outrageous proposal and I hope that they will consider withdrawing it. I beg to move.

Lord Mackay of Ardbrecknish

The amendment would remove Clause 165(4) which ensures that, in assessing homelessness applications, authorities cannot take account of a person who normally resides with the applicant if that person is someone from abroad who is not eligible for assistance under Part VII. If my memory serves me rightly, we discussed the matter this afternoon, which is rather a long time ago. The circumstances are the same here as they were then as regards eligibility for the housing list.

Clause 165(4) is an important provision. A large proportion of homelessness applicants do have dependants. In their own right, these people do not have a priority need for accommodation. That is conferred upon them and their application by the presence of those dependants.

Our policy on eligibility for assistance under Part VII is clear. I have already explained it. Persons from abroad who are not entitled to housing benefit should not be entitled to homelessness assistance. That must apply equally to people who are the dependants of others. If the question of whether there is a priority need turns on the presence of a dependant who is not eligible, then it is logical that a duty should not be owed in those circumstances. I hope that I have made the position clear. I appreciate that it is yet another message that the noble Earl is not going to agree with, but I do not believe that he will be surprised. He may not have heard me earlier today on the subject because I believe I spoke to it before the noble Earl joined the Committee. He will not be surprised because of the nature of my other defences on the matter.

Earl Russell

I fear that the Minister has made the position clear. He has made it clear that asylum seekers are unclean and that one should not associate with them. That is the only way in which I can read what he says. Before we leave the subject, I ask him to give some thought as to whether his proposals infringe Article 8 of the European Convention on Human Rights, which guarantees a right to privacy and to family life. It seems to me that a British subject who marries an asylum seeker is not in any way less entitled to the protection of that convention than somebody who marries another British subject or, indeed, an Australian, an American or whatever. It is a loss of the right to family life if one loses the protection of the homelessness legislation for marrying one person and not another.

I know that there are certain people within Her Majesty's Government who are becoming increasingly allergic to the European Convention on Human Rights, but this country, under a Conservative Government, did choose to enter and to ratify that convention. I have heard the noble Lord, Lord Renton, in this Chamber explain that he was in part responsible for the drafting of that convention. The noble Lord, for whom I have the greatest respect, is not the sort of person Conservatives usually regard as a dangerous ideological foreigner, and what he regarded as fundamental rights I think are rights that we should take extremely seriously.

I am sure that the Minister will reply that the Government are confident that this interpretation is not true. I am no lawyer, and I am not certain, but when the Government say that they are confident we often find that that confidence is misplaced. Sooner or later this will go to court and one hopes that rather more attention will be paid to the court than is being paid to the arguments that we make here tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 165 agreed to.

Clause 166 [Asylum-seekers and their dependants]:

[Amendment No. 265BD not moved.]

Baroness Hamwee moved Amendment No. 265BE: Page 97, line 15, at end insert ("and (c) for the purposes of this subsection, a person's claim shall be treated as being finally determined where he is granted a period of exceptional leave to remain in the United Kingdom.").

The noble Baroness said: This amendment seeks to clarify the question of what is the final determination of an asylum claim within Clause 166(2)(b). That provides that a person ceases to be an asylum seeker and therefore ceases to be subject to the disadvantages and disbenefits imposed by the provisions at the time the claim is recorded as having been finally determined or abandoned.

Many asylum seekers are granted exceptional leave to remain, even if they do not achieve full refugee status. Other noble Lords will know the effect of that better than I, but I should like to know the position of those who have been granted exceptional leave to remain although that leave is limited in time—at any rate, initially; it may be extended or become indefinite. If a decision has been made to allow somebody to remain in the UK without restrictions on working or having recourse to public funds, it seems appropriate that that person should not be subject to the effects of Clause 166. I beg to move.

Lord Mackay of Ardbrecknish

Clause 166, among other things, specifies when a person becomes, and ceases to be, an asylum seeker. Clause 166(2)(b) provides that a person ceases to be an asylum seeker when his claim for asylum has been finally determined (or abandoned). Amendment No. 265BE seeks to define "finally determined" as being the point where the asylum seeker is granted a period of exceptional leave to remain in the United Kingdom.

As such, I suspect that this amendment is, if not technically defective, then inaccurate. I understand that a person's claim to asylum is not necessarily finally determined at the point where he is granted exceptional leave to remain in the United Kingdom, since it is open to him at that point to appeal against the decision not to grant him refugee status. Most asylum claims—currently over 80 per. cent.—are unsuccessful. Those include exceptional leave to remain cases. Of the remaining 17 per. cent. or so, the majority are exceptional leave to remain cases. I believe that the amendment of the noble Baroness goes a little further than we would and almost implies that if an individual gains exceptional leave to remain he is not allowed to appeal. I know that that is not what the noble Baroness intends.

One of the important things that Clause 166 provides is a mechanism which enables the Home Office to notify local authorities when the asylum claim of a homeless applicant has been finally determined. The authority needs this information to determine what homelessness duty, if any, is owed to the person at that point. It is necessary, therefore, to have a definite point at which asylum claims are considered to be finally determined. In a practical sense this has to be the point at which all avenues of possible appeal have been exhausted. The amendment does not provide for this. Those people who are given exceptional leave to remain, as well as asylum seekers, are eligible for benefit and consideration under the homelessness legislation. I was not entirely sure whether the noble Baroness was casting doubt on that. I am happy to clarify it.

Since in most cases the final determination of an asylum claim does not result in the grant of exceptional leave to remain, I do not think that this amendment is a practical option. I hope that the noble Baroness will withdraw it. I do not believe that the noble Baroness spoke to Amendment No.265BF, and I shall rest my argument at this point.

11.15 p.m.

Baroness Hamwee

I did not seek to suggest that a person who was granted exceptional leave to remain had his further rights of appeal restricted by the amendment. I do not believe that that is what this amendment does. The amendment states, for the purposes of this subsection". That would not be the only occasion on which there was a notional assumption of a situation to deal with the subject matter of the clause. It has nothing to do with whether or not the asylum seeker can continue with appeals under separate legislation. My point is restricted entirely to that person's position with regard to the homelessness legislation.

The Minister gave a quick assurance. Perhaps I should read it in the Official Report. I do not know whether he can add to it this evening now that I have perhaps explained the amendment a little more fully.

Lord Dubs

I should like to follow that line of argument. I hope that I do not repeat the question posed by the noble Baroness. With regard to Clause 166(5), it provides that the Secretary of State may give information to the local authority in order that it can carry out its functions under this part of the Bill. That information is related to whether or not the person has become an asylum seeker. Surely if an individual has been given exceptional leave to remain, the fact that he or she is entitled to certain housing services is made more definite. Although at that stage the individual may still have a right of appeal in order to attain asylum status, surely the local authority will benefit from knowing that the person has been given ELR, because that means that its obligations to the individual are quite clear.

Lord Mackay of Ardbrecknish

It may be that we are getting into a bit of a pickle. If that is my fault, I apologise. Clause 166 provides a mechanism which enables the Home Office to notify a local authority when the asylum claim of a homelessness applicant has been finally determined. Clearly when the Home Office has come to a view it will have decided either that the individual is eligible for asylum and is granted asylum or— I am not sure whether I should use "either/or" because I think that there are three possibilities: the person is granted asylum, is given exceptional leave to remain, or neither. The application has been rejected and the individual has not fallen into exceptional leave to remain. It is clearly right that the authority needs that information. That is what the clause does: it gives the Home Office the power to give that information.

I believe that we are all clear about the person granted asylum. The person granted exceptional leave to remain has also ceased to be an asylum seeker. That is the problem. He has ceased to be an asylum seeker, although he could still appeal. I think that is where my confusion has arisen. He has ceased to be an asylum seeker; he has become someone with exceptional leave to remain, and as such he has full rights.

Baroness Hamwee

I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265BF not moved.]

Clause 166 agreed to.

Clause 167 [Interim duty to accommodate in case of apparent priority need]:

[Amendment No. 265BG not moved.]

Baroness Hamwee moved Amendment No. 265BH: Page 98, line 10, leave out subsection (3) and insert— ("(3) Irrespective of the applicant's request for a review, the duty of an authority shall cease upon written notification to the applicant, which notification shall contain reasons for the termination of the duty and shall inform the applicant of his right to request a review of that decision (see section 181)").

The noble Baroness said: I shall speak also to Amendment No. 265BL. Amendment No. 268ZAC is grouped with these amendments, and I leave it to others who may be able to find it to decide whether to speak to it.

Amendments Nos. 265BH and 265BL return to the subject of information in the context of a review. I hope that the Minister can give further assurances. The first amendment relates to the written notice provision and is designed to ensure that an applicant is informed fully of his rights to a review at an early stage and, as a practical matter, in the hope that it will avoid unnecessary delay in making an application if an applicant is ignorant of his rights in that respect.

My second amendment is intended to ensure that a homeless person refused temporary accommodation is notified formally of the refusal and of the reasons for it. It is a matter of natural justice to which the Committee has been referred earlier, and again a matter of practical importance, reinforcing the duty of local authorities to deal with it in a correct manner and to account for the process by which they have arrived at an unfavourable decision. I beg to move.

Lord Mackay of Ardbrecknish

I appreciate the noble Baroness's concern that an authority should be required to give written notification of its decision not to accept a duty to accommodate under the homelessness legislation. The homelessness duty is an important one, and a person refused that duty is entitled to know the full reasons for this, so that if he is unhappy with it he can seek redress through a review under Clause 181.

That is why we have provided in Clause 164 that written notice is given of the outcome of inquiries under this part. These provisions substantially repeat what is currently in Section 64 of the Housing Act 1985. They require an authority to give its reasons in writing. If the noble Baroness looks at Clause 164 I hope that she will see that what she is seeking in Amendment No. 265BH is contained in Clause 164(3) and (6) which provides: Notice required to be given to a person under this section shall be given in writing". I hope that answers that point.

With Amendment No. 265BL the noble Baroness is seeking to require authorities to give written notice of reasons for refusing the interim duty. I question whether that is necessary or indeed practicable. Local authorities are approached by a range of people seeking assistance with their housing problems, many of whom are not homeless within the meaning of the legislation and some of whom, although they may pass the test of homelessness, are certainly not owed a duty. It would be unreasonable for a local authority to be required to give a written response with reasons to each and every inquiry it receives, however casual.

Local authorities take their duties under homelessness legislation very seriously. They consider each case on its merits. The disposition of the law is to require them to consider all applications and, where necessary, to provide interim accommodation where they have reason to believe that someone may be owed a duty. So the balance of advantage already rests with the applicant. The code of guidance stresses the need to consider all applications fully and we will maintain this advice when we issue a new edition. It would be unrealistic to require authorities to go further. I hope that the noble Baroness will withdraw her amendment.

Baroness Hamwee

I remain a little concerned about the second point. It is dangerous to suggest that, in an area as fundamental to people's well being as this, notice in writing should not be required. I should have thought that any sensible local authority would keep proper file notes of what it is doing and what its responses to any application for housing have been. If it does that, it is only a small further step to giving the notice in writing. If it is not given in writing, there is an awful temptation for people to behave rather carelessly. However, I think that it is rather late to pursue the matter now. I thank the Minister for both those replies. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 265BJ: Page 98, line 10, leave out subsection (3) and insert— ("( ) The authority shall continue to secure that accommodation is available for the applicant's occupation pending a decision on a review.").

The noble Baroness said: This amendment concerns the provision of accommodation pending a review. We know that the local authority has an interim duty to provide temporary accommodation for people in priority need while it considers whether people come within the remit of the Act and of local connection. If it decides that it does not have such a duty, the Government have sensibly agreed that the applicant should have the right of review.

This amendment does something very simple. It provides that the applicant should continue to stay in the interim accommodation while the review is being conducted and not be evicted, even though it is quite possible that the review may subsequently be found in his favour and he be reinstated again. We do not expect review cases to occur that frequently. But if they do, as a result of the amendment, the local authority will have to ensure that the proceedings take place as quickly as possible. However, a right of review is meaningless if, while that right of review is being considered or while the review is taking place, the applicant has been evicted from the accommodation he was in temporarily. If he has family or friend to go to, he will be fine. But if he has not, he may be in real difficulties. I beg to move.

Lord Mackay of Ardbrecknish

Local authorities are generally very assiduous about the way in which they assess an application for assistance under the homelessness legislation. However, we see the new review procedure as an important safeguard for the rights of the applicant and we wish to see it as open as possible so that the aggrieved applicant can access it without specialist or professional help. We want authorities to conduct reviews as speedily as possible and we will be issuing guidance of the target times they might wish to set themselves for the turnround of appeals, although in many cases it will be several weeks before this can be arranged.

Nevertheless, given this situation, the amendment appears to be an invitation to anyone who is refused assistance by the authority to put in an appeal on wholly unmeritorious grounds with the sole objective of requiring the authority to accommodate him for a few more weeks pending the resolution of his appeal.

We have been over this ground of general principle once or twice this evening. Therefore, it will not come as a surprise to the noble Baroness that I am attempting to continue what I consider my logic, and what no doubt the noble Baroness considers my lack of logic, in relation to this appeals situation.

The existence of a continuing entitlement to benefit would, we fear, merely encourage appeals without foundation. Therefore, we prefer to follow the model which is applied to social security appeals where entitlement to benefit is withheld pending the outcome of an appeal which has been made against a decision to suspend benefit.

The authority has a discretion to continue to provide interim accommodation where it feels that that is appropriate. I believe that that should be a sufficient protection for somebody in a difficult position. That is a small chink in the otherwise impenetrable logic which I am attempting to throw up in regard to the way in which we treat social security appeals across the field. We do not believe that it would be right to do as the noble Baroness suggests, but I point out that the interim accommodation procedure exists if the local authority feels that that is appropriate.

11.30 p.m.

Baroness Hollis of Heigham

I am now left utterly confused by the Minister's reply because he was moving between this procedure, which is not a social security procedure, and social security procedure.

Let us go back to where we were. I am seeking to say that it may take a few weeks for a local authority to decide whether a person who is currently enjoying interim accommodation is unintentionally homeless, in priority need and has a local connection. During that time the person is in interim accommodation. A decision may then be reached that the person does not fall into one of those categories. The individual may then appeal against that decision. Do I understand the Minister to say that a local authority has a discretion to continue to extend the period of interim accommodation while the appeal is being heard?

Lord Mackay of Ardbrecknish

I said that the authority has a discretion to provide interim accommodation where it feels that that is appropriate. Of course, the person appealing may still be in the original premises because a decision could have been made by the authority before the person has left the premises which he knows he will have to leave. As I suggested earlier, that decision is usually made in advance of the person leaving. In those circumstances, the person may not yet have left before the decision was reached. I should not like the Committee to think that in every circumstance the person will be in interim accommodation using the interim powers. However, if it helps the noble Baroness, I am prepared to underline the fact that the authority has a discretion to provide interim accommodation where it feels that that is appropriate.

Baroness Hollis of Heigham

Does it extend also to the situation in which somebody is appealing in a shorthold tenancy, for example, and between the local authority refusing and the appeal being heard, that interim duty may then newly come into play?

Lord Mackay of Ardbrecknish

In the circumstances which the noble Baroness has postulated, that the person is in accommodation but loses it, during the course of the appeal the authority has a discretion to provide interim accommodation.

Baroness Hollis of Heigham

I believe that this matter can be dealt with in guidance in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 265BK: Page 98, line 15, leave out subsection (4).

The noble Baroness said: To some extent, this is a linked amendment but again I shall try to be brief. For someone who is homeless and in priority need the local authority has a duty to provide temporary or emergency accommodation pending full inquiries into the case. But we are not now talking about the acceptance of a duty but rather the interim period during which a local authority determines whether or not a duty exists under the legislation in terms of someone being unintentionally homeless, in priority need and having a local connection.

I am concerned that the Government are steering local authorities into using suitable alternative rented private accommodation for the discharge of that interim duty. What I fear is that if local authorities send an applicant into private rented accommodation for the interim period while they make inquiries, those inquiries will not necessarily be made. They will regard themselves as having discharged their duty by putting someone into interim accommodation, however inadequate that may be.

While we are worried about this—it is too late at night to begin a full-scale debate on the adequacy or otherwise of the private rented sector to meet the homelessness duties of a local authority—nonetheless it is the case that, first, private rented landlords are fairly reluctant to let to families in these situations, particularly for a short and interim period which may last for only a few weeks. Secondly, evictions from the private rented sector are one of the most significant causes of homelessness. Anywhere between 15 and 30 per cent. of people coming into the homelessness group of the local authorities I have looked at have come out of that same private rented sector the Government are busy sending them back into.

Obviously circumstances differ, but I worry that the Government are expecting or encouraging local authorities to think they have discharged their interim duty by providing a list of addresses for someone who is going back into private rented accommodation. As a result, there will be no full review of that person's need for temporary accommodation other than keeping him in the interim accommodation he currently occupies. As I say, being the private rented sector, that may well be entirely inadequate, particularly if he has problems of physical disability; if the house itself is not in a good condition; and if he has problems continuing to pay the rent for it. In the private rented sector—unlike the council house sector—rents are often not met fully by housing benefit. Will the Minister give us some help on this issue and not allow local authorities to avoid taking seriously a temporary duty by fobbing people off with inadequate private rented accommodation in order to meet their interim duty? I beg to move.

Lord Mackay of Ardbrecknish

As the noble Baroness explained, the amendment would remove the "alternative accommodation" provision in respect of the interim duty to accommodate pending inquiries. It would not seem logical to require an authority to accommodate someone itself on an interim basis when there might be a ready supply of accommodation available in the private sector. In accommodating applicants while an application is investigated local authorities may need to find accommodation quickly in an emergency and so make use of different types of accommodation. We would not necessarily regard bed and breakfast hotels as suitable interim accommodation for families except for the first few nights following a crisis, but in some cases such accommodation will offer a suitable interim solution.

Interim accommodation is generally not in use for very long. Local authorities are advised in the homelessness code of guidance that they should regard 30 working days as the maximum limit for completing their inquiries, except in exceptional cases, from the time they accept a duty. Recent research commissioned by the Department of the Environment-evaluation of the 1991 homelessness code of guidance—shows that on average authorities take 17 days to complete their inquiries. As we intend that revised guidance would continue to offer similar advice to authorities, I hope that the noble Baroness can withdraw her amendment.

As regards the kind of accommodation, interim accommodation must be suitable. We have discussed that situation with reference to other accommodation. I am trying to find my way through the main reasons for homelessness in the fourth quarter of 1995. I think I am right in saying that the end or loss of tenancy constitutes 21 per cent. of those reasons. Therefore I do not think it is quite the biggest factor, as I believe the noble Baroness suggested when she indicated that the loss of tenancy in the private sector was the biggest problem—

Baroness Hollis of Heigham

One of the biggest problems.

Lord Mackay of Ardbrecknish

I do not know whether 20 per cent. constitutes one of the biggest problems. In fact none of the categories is huge, so I suppose it is one of the biggest problems, even at 21 per cent. I am thinking on my feet. I shall not argue with the noble Baroness on that count.

I hope that what I have said about the need for the accommodation to be suitable and the way in which we hope and intend that the guidance will act will allay the noble Baroness's worries in this regard and show her that it would not be wise to remove the alternative accommodation provision.

Earl Russell

Before the noble Baroness decides what to do with the amendment, perhaps I may ask the Minister to clarify one point.

When he talks about housing being available, what does he mean by "available"? Does he simply mean that the housing exists; or does he mean that it is housing that the person could reasonably be expected to afford?

Perhaps the noble Baroness will forgive me for taking an example that she has already used this evening. A couple cannot find a one-bedroomed flat on the market. Are they expected to take a two-bedroomed flat which is available even though housing benefit does not cover all the costs? Would such a flat be regarded as available within the meaning that the Minister used?

Lord Mackay of Ardbrecknish

I am in some difficulty in that these are details which will be in a code of guidance which will be fairly detailed. I think not, although I should need to study the question and look for the answer in a more detailed way, if the noble Earl does not mind.

The important point is that we are talking about interim accommodation. I mentioned earlier that authorities have a reasonably good success rate in managing to keep people in their existing accommodation while the problem of finding them alternative accommodation for up to two years is resolved. That is one way in which the authorities can deal with the interim position. They can find a way to negotiate or help tenants to stay in their existing houses rather than have them face the rather graphic situation which was referred to earlier of being absolutely roofless as well as homeless.

If the noble Earl does not mind, I shall examine the question and perhaps write to him about it.

Baroness Hollis of Heigham

Judgment on whether accommodation is suitable can be made only after inquiries have been completed. Yet that judgment is having to be made before the inquiries are completed by the local authority.

If one considers Clause 167 in the context of Clause 168, the interim duty is not the same as for those on the housing waiting list. The local authority has a duty to ensure that interim accommodation is available where someone is homeless—it is virtually the only place in the Bill where the word "homeless" is used—eligible for assistance and has a priority need. The priority need categories are, a pregnant woman…a person with whom dependent children reside or might reasonably be expected to reside; a person who is vulnerable as a result of old age, mental illness or handicap or physical disability … or threatened with homelessness as a result of an emergency". Almost all those categories in a more general sense are people with special needs. They are people for whom standard private sector accommodation is not available. Often it is exactly the type of accommodation from which they have come.

The Minister was not sure whether 21 per cent. was a particularly high figure. I suspect that if he checks the national figures he will find that eviction from the private rented sector is only surpassed as a reason for homelessness by a breakdown in relationship either with family or husband. Those are followed by mortgage repossessions and rent arrears, and one goes on down the list. I am reasonably confident that in all the local authorities I have studied eviction from the private rented sector is usually (although not invariably) not due to rent arrears. One of the largest single explanations for homelessness is that the accommodation is unsuitable for that person's physical condition as listed under priority needs. In the off-the cuff, immediate judgment, the local authority may believe that people come within the category of need. It will have to review the decision and make final inquiries in particular about the local connection. The Minister says that none the less such people must either stay put or go back into the local private rented sector, even though it may have thrown them into the condition of threatened homelessness and the private rented sector is largely unsuitable for the categories of people in priority need as defined in Clause 168.

Given that there is a presumption that by going into interim accommodation such people will go on to enjoy temporary housing, it seems to me that it would be prudent, wise, sensible and humane for the local authority to ensure that the accommodation is available pending the review. Can the Minister help us further?

11.45 p.m.

Lord Mackay of Ardbrecknish

I am not sure what I am being invited to explore. The local authority does not have a pool of houses available somewhere which it can promptly use for someone who is homeless. Therefore, there is an effort to match the best possible situation for the interim. I am sure that that is what the authority will do. It will have to do the best it can. No one in their right mind could expect the authority to have available every possible variation in housing that may be required by someone who may become homeless. The authority will have to try to ensure that it is suitable and, I add, the best match it can make in the circumstances. After all, it is a temporary and interim position while the authority examines the case. If it finds that the case is genuine and falls to be considered under the homelessness legislation, it will go on to find more suitable accommodation. If the authority's inquiries show that the needs of the people involved are such that the accommodation found is unsuitable, then it must find new accommodation.

The matter cannot be too easily resolved because it is not an event that is easy to plan for. Local authorities will have to try to do the best they can in the interim arrangements to match the family situation of the person with the best accommodation it can find to solve the interim problem. That includes trying to keep people in their existing accommodation until the situation has been resolved.

Baroness Hollis of Heigham

In that case, we will look to the Minister at Report stage for amendments which will put a duty on the local authority making available interim accommodation to ensure that it is suitable. "Suitable" should mean that it is both appropriate and affordable, following the point made by the noble Earl, Lord Russell. Further, it should be made clear that local authorities will not have discharged their duties to provide temporary housing under the homelessness procedures by finding a family interim accommodation and then saying that, because it is in that accommodation, the accommodation is appropriate and that discharges or relieves the local authority from all further duties.

The Minister gave us comfort in the thought that he would support the position. In that expectation, I am sure that we shall re-visit the issue at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265BL not moved.]

Clause 167 agreed to.

Clause 168 [Priority need for accommodation]:

[Amendments Nos. 265BM to 265D not moved.]

Lord Dubs moved Amendment No. 265E: Page 98, line 27, at end insert— ("( ) a person who is fleeing violence or harassment").

The noble Lord said: Clause 168 indicates the categories that have priority need for accommodation under the interim duty to accommodate. The purpose of this amendment is to add one other group; namely, those fleeing violence or harassment.

In the experience of local authorities some of the instances of threatened violence or harassment involve racial harassment: members of minority ethnic groups find themselves under serious pressure and are, as it were, coerced into leaving their homes. The point of the amendment is to ensure that a local authority would identify victims of that sort of coercion or racial harassment as having a priority need for accommodation.

It is a simple proposition. The facts are well known. Sadly, there are members of minority ethnic groups who are the subject of this type of pressure. Those who suffer in this way have a very unpleasant time and it is understandable that such families feel that they have to leave their homes. They then find themselves homeless. If a local authority is able to assess them as being in priority need of accommodation based on the point in this amendment, the local authority could act more quickly to provide them with interim accommodation. The case is a very simple one. I beg to move.

Earl Russell

This is an important amendment. The reason for spelling out these two categories is that they are both ones which local authorities from time to time ignore. Because such matters are extremely unpleasant, many of us do not like thinking about them, and do not like admitting that they exist. Therefore we tend to hide our heads in the sand and pretend that we do not have to do anything about them. A specific statutory requirement, certainly to my knowledge in the case of domestic violence and, I believe, in the racial case as well, is worth including.

Before we leave tonight's business, I wish to congratulate the Minister on the courtesy, good nature and patience that he has shown in handling business which has occasionally been quite contentious. I can say no more than that he is beginning to approach the standard set by his noble and learned clansman on the Woolsack.

Lord Hylton

It has been established that there is a considerable volume of racial violence and harassment which bears directly on housing and which tends to produce homelessness. Will the Minister tell the Committee what is being done to try to prevent that before it happens, or after the first symptoms have manifested themselves and before it has reached the point of producing homelessness? I think everybody, inside and outside Parliament, wants to avoid ethnic clearance in this country, even if it has not always been possible to avoid it in other countries.

Lord Mackay of Ardbrecknish

First, I thank the noble Earl for his kind remarks. I like to think that we all manage to conduct the sometimes very contentious legislation that I seem to take through this place in a civilised way. While arguments are undoubtedly deeply felt, I do not believe that we lose tempers as in the other place. That is only right and proper when considering such serious matters. Comparing me to my noble and learned clansman is indeed a high honour.

Turning to the point made by the noble Lord, Lord Hylton, I hope he does not mind if I do not follow him too far down that track. He has opened up a debate that is rather wide of the clause. It takes us into a great many other aspects of how social services work, how the police operate, and so on, in cases of domestic violence. If I had the solution to preventing domestic violence getting out of hand, I should be in quite high demand by my colleagues in Whitehall, and indeed by a lot of people outside. It is a difficult issue. We have already discussed it. I hope that we are accepting it and identifying it as one of the reasons why a lady in particular—that is usually how it operates, though not always—may require to leave the family home, because she feels herself to be so threatened by a violent husband.

I accept that we are going a little further than that and looking at harassment in a wider field outside the home. We discussed that. Without repeating what I said earlier, there are other aspects of the law which have to be brought into play when one considers other forms of harassment. I do not think we can necessarily look to housing legislation to solve those wider problems.

This amendment in particular would extend the definition of priority need to include any person who is fleeing violence or harassment. Some individuals may be vulnerable as a result of the psychological effects of violence, abuse or harassment, or for any other reason. Their need is recognised in the reference in Clause 168(1) to which I should draw the Committee's attention. Perhaps I should say before I do so that Clause 168 is unchanged from the 1985 Act. Paragraph (c) says: a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason". That other special reason is important. Those three words are recognition of the problems about which we are talking—persons who are vulnerable to violence or harassment. We will elaborate on this in the guidance we issue on the new legislation. But I suggest that an open-ended reference to fleeing violence or harassment would not make sense in all circumstances. It would not take account of individual circumstances, and could lead to some perverse results. For instance under such a provision, if it was on the face of the Bill in the way suggested, a hardened drug dealer who wanted to lie low because some of his associates were threatening violence against him could claim a right to housing assistance from the local housing authority on the grounds of fleeing violence or harassment. That may be very true but whether the Committee considers that such a claim should be considered under the provisions of this part of the legislation, I am not sure. Certainly, I do not think I would think it. Nor, I suspect, would most Members of the Committee.

I recognise the concern behind the amendment and share all the points that the noble Lord, Lord Dubs, and other noble Lords have made about violence, whether it occurs on the street or in the home. However, I do not think that the solution to the difficulties which some people experience outside the home lies in extending the coverage of this legislation. When someone experiences violence or abuse within the home, it is not reasonable or logical that they should be expected to remain there and try to use the remedies of the law to protect themselves. We all know that that would not work and that the person would continue to be the victim of violence. A person in such a situation is and will continue to be considered unintentionally homeless and vulnerable as they are no longer able to live in their home.

I hope that that makes the position absolutely clear. Outside the home violence is another matter that I have already discussed. It takes a multitude of forms from a wide range of causes, and I believe that we have to be very careful before we make too sweeping amendments to housing legislation which would cover far wider issues than I think are relevant to the question that we are discussing about rights under homelessness legislation.

With that assurance, I think not for the first time today on the question of domestic violence and homelessness legislation, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell

The Minister's point about the drug dealer is well taken. It does not answer what I believe is a genuine need for a statutory provision. So before we reach the later stages of the Bill, I wonder whether the Minister could possibly think about whether some tighter form of words might be acceptable which performs its purpose.

Lord Dubs

I endorse the noble Earl's point. When I read Clause 168, it did not, frankly, occur to me (I read it earlier than this hour in the evening) that the words "other special reason" would refer to people fleeing from violence or harassment from their neighbours or other people in their locality. It did not seem to me that that was the most obvious interpretation. Now that the Minister has pointed it out, it makes sense.

I concede that if the amendment had been inserted not at the end, but at the end of subsection (c), my argument would have been that much better because it would have been preceded by the words, a person who is vulnerable as a result of'. That would have met all the Minister's objection to including it. Where it is now, it does not have those words preceding it and therefore it has a slightly different meaning from the one it would have had if the person had been vulnerable. That being the case, and given that the Minister is going to issue guidance to local authorities to that effect, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265F not moved.]

Clause 168 agreed to.

Clause 169 agreed to.

Clause 170 [Becoming homeless intentionally]:

[Amendment No. 265G not moved.]

Clause 170 agreed to.

Clause 171 agreed to.

House resumed.