HL Deb 24 January 2002 vol 630 cc1576-87

3.33 p.m.

Read a third time.

The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton) moved Amendment No. 1: After Clause 11, insert the following new clause— "CO-OPERATION IN CERTAIN CASES INVOLVING CHILDREN After section 213 of the 1996 Act (co-operation between relevant housing authorities and bodies) there is inserted— "213A CO-OPERATION IN CERTAIN CASES INVOLVING CHILDREN (1) This section applies where a local housing authority have reason to believe that an applicant with whom a person under the age of 18 normally resides, or might reasonably be expected to reside—

  1. (a) may be ineligible for assistance;
  2. (b) may be homeless and may have become so intentionally; or
  3. (c) may be threatened with homelessness intentionally.
(2) A local housing authority shall make arrangements for ensuring that, where this section applies—
  1. (a) the applicant is invited to consent to the referral of the essential facts of his case to the social services authority for the district of the housing authority (where that is a different authority); and
  2. (b) if the applicant has given that consent, the social services authority are made aware of those facts and of the subsequent decision of the housing authority in respect of his case.
(3) Where the local housing authority and the social services authority for a district are the same authority (a "unitary authority"), that authority shall make arrangements for ensuring that, where this section applies—
  1. (a) the applicant is invited to consent to the referral to the social services department of the essential facts of his case; and
  2. (b) if the applicant has given that consent, the social services department is made aware of those facts and of the subsequent decision of the authority in respect of his case.
(4) Nothing in subsection (2) or (3) affects any power apart from this section to disclose information relating to the applicant's case to the social services authority or to the social services department (as the case may be) without the consent of the applicant. (5) Where a social services authority—
  1. (a) are aware of a decision of a local housing authority that the applicant is ineligible for assistance, became homeless intentionally or became threatened with homelessness intentionally, and
  2. (b) request the local housing authority to provide them with advice and assistance in the exercise of their social services functions under Part 3 of the Children Act 1989,
the local housing authority shall provide them with such advice and assistance as is reasonable in the circumstances. (6) A unitary authority shall make arrangements for ensuring that, where they make a decision of a kind mentioned in subsection (5)(a), the housing department provide the social services department with such advice and assistance as the social services department may reasonably request. (7) In this section, in relation to a unitary authority— the housing department" means those persons responsible for the exercise of their housing functions; and the social services department" means those persons responsible for the exercise of their social services functions under Part 3 of the Children Act 1989." The noble and learned Lord said: My Lords, as I said on Report, the issue of accommodation for children in need and their families under Section 17 of the Children Act 1989 is an important one and will be considered in the House of Commons in relation to the Adoption and Children Bill. This will address a central issue of concern that has been raised both in this House and outside; namely, that it needs to be clear that social services have the power to provide accommodation for children and their families under Section 17.

But there is also the separate question of ensuring that there is good co-operation between the housing and social services departments in working to meet the needs of such children and their families.

I have previously mentioned having met a number of social services directors and being impressed by the arrangements they have in place to ensure that their own department works together with the housing authority—or housing department in the case of unitary authorities—to find an appropriate solution for the whole family when dealing with families with children who are intentionally homeless or ineligible for housing assistance. I am bringing forward amendments with the purpose of ensuring that all local authorities should adopt similar co-operative arrangements.

New Clause 11A—which would insert a new Section 213A in the Housing Act 1996—would require housing authorities to have arrangements in place to ensure that the social services authority is aware of cases where the housing authority is dealing with an application from an applicant whose household includes a child under age 18 and the authority has reason to believe that they may be homeless, or threatened with homelessness, intentionally, or may be ineligible for housing assistance. The housing authority would also have to inform the social services department of the decision taken on the homelessness application.

These requirements would be subject to the applicant's consent, although, where consent was withheld, this would not affect the housing authority's ability to alert the social services authority in any case where it was concerned that a child might be at risk of suffering significant harm.

New Clause 11A would also place a new duty on housing authorities to provide advice and assistance to the social services authority, where the latter was aware of a decision by the housing authority that a household that includes a child under 18 is intentionally homeless, or threatened with homelessness, or ineligible for housing assistance, and the social services authority asks for assistance in the exercise of its functions under Part III of the Children Act 1989. This new duty will not prejudice the current provisions on co-operation between authorities in Section 27 of the Children Act 1989.

New Clause 11A would also place a requirement on unitary authorities to have similar arrangements in place; that is, to ensure that, subject to the applicant's consent, the facts of such cases and the decision on the homelessness application are referred to the social services department by the housing department, and to ensure that the housing department provides advice and assistance, such as is reasonable in the circumstances, to the social services department on request.

As I said on Report, my department and the Department of Health intend, in addition, to issue joint guidance to housing and social services departments about co-operative working in the context of these new provisions.

It is essential that when dealing with homeless families with children there is positive co-operation between housing and social services departments, and that there are joint protocols in place to ensure that this is carried through in practice. Some authorities are already doing this, and I applaud them. We want to see this extended to all authorities. New Clause 11A will provide the statutory framework to ensure that this happens, and I urge noble Lords to give their support to it.

Perhaps I may mention the fact that these proposals were first raised in this House, and from all sides. The noble Baronesses, Lady Maddock and Lady Hanham, both referred to them. My noble friend Lady Massey, who is not present today but who knows about this provision, has persisted in raising the issue—rightly—throughout the course of the Bill. Shelter has also done a significant amount in bringing this matter to the attention of those in this House and beyond. One of the great things that we manage to do in this House is to produce provisions such as this. I commend the amendment to the House. I beg to move.

Baroness Hanham

My Lords, I welcome these provisions. They will strengthen the Bill and move towards meeting what has for some time been a crying need to make sure that parents, particularly mothers, with children who find themselves homeless or about to become homeless are not separated. That has been one the great shames in some places in the country.

I have no difficulty in welcoming the amendment. As this may be a final opportunity, perhaps I may say in passing that on the whole the Bill has been uncontroversial. What we have all tried to do during its passage through this House has been to strengthen it and ensure that it achieves the objectives that lie behind it.

My anxiety remains that the Bill may be a triumph of hope over experience—largely because it extends the "homeless" categories. We all know that that objective will be impossible to meet if we cannot resolve the problems of temporary and permanent housing for those for whom the Bill is intended. It is a matter to which we may return on other occasions. It is certainly one that I shall want to continue to monitor. None the less, the Bill is welcome, and I particularly welcome the new clause.

Baroness Maddock

My Lords, I do not wish to carp, but it would have been helpful if the amendment had been tabled a day earlier.

Lord Falconer of Thoroton

My Lords, I apologise for that. It was entirely my fault. There were still things to sort out. If there are any difficulties, I hope that I can resolve them and answer any questions raised.

Baroness Maddock

My Lords, I shall put my questions into my remarks. I made that point because for those of us who do not have large departments or lots of people helping us with legislation, it is quite difficult. We have been asked by the usual channels to make sure that we table amendments on time. I am glad that the noble and learned Lord recognises the difficulties.

The noble and learned Lord did not make it clear whether the Government were going to make changes to the Adoption and Children Bill. It is obvious from comments that I have made at earlier stages, together with the noble Baroness, Lady Massey, who is very sorry that she cannot be here, that the amendment meets the points that we have raised and the concerns that Shelter has expressed.

It is important to emphasise how sensitively housing departments will need to deal with the issue. Applicants in those circumstances are likely to be very vulnerable and distressed. Given the preconceptions that some people have about social services and the publicity that has surrounded the issue, a suggestion that they will be referred to social services may cause some people further distress and may discourage them from giving their consent. The important aspect of the amendment is that the consent of people presenting themselves to the local authority is required. It will therefore be important for housing departments to make it clear sensitively that social services may be able to assist them. That should be reflected in guidance. I hope that the Minister will tell us that that will happen.

It would also be helpful if the Minister could expand a little on what is meant by, such advice and assistance as is reasonable in the circumstances". How will that be dealt with in guidance? I hope that housing departments will be encouraged to be active in that area and to use their local knowledge to advise social services on the state of the local housing market.

With those provisos, we welcome the amendment. I hope that the Minister can reassure us on the two points that I have raised.

The Lord Bishop of Portsmouth

My Lords, I share the concerns and the enthusiasm expressed by the previous two speakers. It is good that the Government have listened to those concerns. Where children are involved it is important that safeguards are built in. I am glad that the Government have tabled the amendment, which has my support.

Baroness David

My Lords, my noble friend Lady Massey is unable to be here today, but she asked me to say on her behalf how pleased she is and how grateful she is to the Minister for the amendment that he has tabled. She is entirely satisfied that it will deal with the problem of parents and children being separated, which had caused anxiety to many of us. I add my thanks to hers. We are very pleased that at long last an amendment has been tabled that seems to fulfil all our ambitions on this difficult problem. I thank the Minister on behalf of us all.

Lord Bridges

My Lords, will the Minister be so kind as to explain the meaning of "intentionally" in subsection (1)(b) and (c)? I think that I understand the circumstances in paragraph (b) in which a person becomes intentionally homeless, but paragraph (c) is less clear to me. Who would be threatening the child? What are the circumstances foreseen? If that could be read into the record, it would be a substantial help in subsequent litigation.

3.45 p.m.

The Earl of Listowel

My Lords, I too warmly welcome the amendment. I should appreciate the Minister's clarification on a few points. It would be helpful if he could expand on what is meant by providing, such advice and assistance as is reasonable in the circumstances". I hope that housing departments will be encouraged to be active in that area and to use their knowledge and expertise on the local housing market to help social services in exercising their functions to provide housing assistance to families. That could mean, for example, suggesting the names of private landlords with property in the area or arranging for housing benefit claims to be expedited to secure private accommodation.

In certain circumstances in which the needs of children are unlikely to be met outside the social sector—for example, if they are disabled and need a specially adapted property—I hope that such assistance would not preclude the provision of accommodation. That might be reflected in guidance. Perhaps the Minister might write to me on those points if that would allow him to expand further on them.

Finally, on the point of intentionality, it would be helpful if the Minister could encourage local authorities to take more account of the circumstances in which a family's homelessness arises in the first place and the potential implications for them when applying the law relating to intentional homelessness. Families are sometimes declared intentionally homeless in extremely harsh circumstances. Taking a longer-term approach could save a good deal of distress, particularly if, as in the example that I gave earlier, the child has special needs. Shelter's legal teams are frequently successful in overturning harsh decisions about intentionality. I look forward to the Minister's reply.

Baroness Park of Monmouth

My Lords, I apologise for making this point so late in the proceedings. I hope that I am not too late. Clause 15(3), which deals with allocation schemes, says: The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs)". May I ask most strongly that whatever guidance the Minister gives should cover the needs of families who have been—as the Government politely call it—relocated from Northern Ireland under paramilitary threat? Approximately 150 such families arrive in this country every year, homeless, helpless and distraught. They usually have children and are often probably not very intelligible to many people, having strong Belfast accents. If anybody is in urgent housing need, they are. Although the Bill applies only to England and Wales, I hope that citizens of Northern Ireland will come within the purview of the scheme if they arrive here homeless. My urgent request to the Minister is to ensure, when framing the guidance, that some specific reference is made to that problem and to the particular need of those people for priority treatment.

Lord Avebury

My Lords, on Report I moved an amendment on the particular problems faced by local authorities when dealing with homelessness among gypsies. Since then I have written to the noble and learned Lord, although I do not expect him to have had time to consider the points that I raised in that letter. I should like him to interpret the new clause as it applies to gypsies who become homeless.

As the noble and learned Lord knows, many gypsies have large families. If they are living on an unauthorised encampment, they are already homeless. As I pointed out in my letter, the police have the power to issue directions for them to move under Section 61 of the Criminal Justice and Public Order Act 1994. The local authority also has the power to direct them to move if they are camping on land without the permission of the occupier or on the roadside and in certain other circumstances.

Consequently, if police were contemplating using Section 61 or local authorities contemplated using Section 77, the gypsy family living on that land would be threatened with homelessness and the provisions of this clause would, I think, come into play. However, as the Minister is also aware, it is not normal for gypsies to accept temporary accommodation as they have a strong cultural aversion to going into bed and breakfast. Recently, moreover, the courts have ruled that that is a perfectly reasonable attitude for them to take. Yet, in most local authorities there is not sufficient accommodation for the gypsies already residing in or resorting to their area. That is one of the difficulties that we face because we do not have the guidance. We do not know what local authorities will be asked to do when they are faced with such circumstances.

When a gypsy family are in unauthorised occupation of a piece of land, there is a threat that they will be removed. Under this legislation, the local authority would have a duty to make provision for them that does not sunder the children from the parents even though there was no accommodation on authorised sites within the local authority area to which they could be asked to move when directed to leave their current accommodation. I just wonder how the Minister will reconcile that problem in the eventual guidance.

Lord Falconer of Thoroton

My Lords, I am grateful to noble Lords who have welcomed the amendment. I shall deal with the specific points.

The noble Baroness, Lady Maddock, asked about the amendment that is needed in relation to the Children Act 1989. As I said on Report and again today, the critical issue is to ensure that the social services directorate has power, when appropriate, to house the family and not only the children. As my honourable friend the Minister of State at the Department of Health said in the Commons on 17th January, to which I referred on Report, we have undertaken to bring forward amendments to the Adoption and Children Bill to address that issue.

As for guidance on the difficulties to which the particular duty gives rise—as the noble Baroness, Lady Maddock, said, there will be sensitivities between housing and social services because of the fact that they are dealing with children—those particular sensitivities need to be reflected in the guidance that will be issued.

The noble Baroness also asked what type of advice and assistance would be provided. That issue was raised also by the noble Earl, Lord Listowel. Perhaps I may write to the noble Baroness and the noble Earl on what we wish to see in the advice and assistance. The types of issue raised by the noble Earl—such as practical help in finding accommodation and obtaining housing benefit—are precisely those we would expect to see addressed in the advice and assistance.

As for the issue raised by the noble Lord, Lord Bridges, I do not want to get sucked into a debate on what might happen in relation to litigation. However, the difference between subsections (1)(b) and (1)(c) is that, in subsection (1)(b), the subject has become homeless and, in subsection (1)(c), the subject is threatened with homelessness. The word intentionally has the same meaning in both paragraphs and that meaning has been enshrined in homelessness legislation for a very considerable time. I think that the distinction between the two is simply that one subject is homeless whereas the other is threatened with homelessness.

The noble Baroness, Lady Park of Monmouth, raised an issue that, with the greatest respect. I think has absolutely nothing to do with the amendment we are debating. Nevertheless it is an important issue. If I may, I shall write to her on the particular issue.

I think that that deals with all the points that were raised.

Baroness David

My Lords, if the Minister is writing letters, perhaps he could place copies of them in the Library.

Lord Falconer of Thoroton

My Lords, of course I shall do that.

Lord Avebury

My Lords, may I ask the Minister to address the issues that I raised?

Lord Falconer of Thoroton

My Lords, I apologise to the noble Lord, Lord Avebury. The provision applies only in the case of intentional homelessness. It was difficult to work out from the example that he gave whether the circumstances constituted intentional or unintentional homelessness. If it were a case of unintentional homelessness, the provision would not apply.

We need to consider carefully how the types of issue that the noble Lord raised would be addressed in guidance. I am sorry to be vague on the point, but the provision is only now being added to the Bill and we have to think very carefully about the guidance before we produce it. However, I shall consult him before we go forward with the guidance.

On Question, amendment agreed to.

Clause 15 [Allocation schemes]:

Baroness Maddock moved Amendment No. 2: Page 11, line 1, after "any" insert "deliberate, wilful, or negligent The noble Baroness said: My Lords, I apologise for taking up the time of the House. However, as my noble friend Lord Avebury said, we might not be pressing some of these issues so much if the guidance were past the draft stage.

Amendment No. 2 is designed to ensure that local authorities exercise their discretion in determining the priority given to applications in line with the Government's policy intentions, by stipulating more clearly the behaviour defined in Clause 15(3)(2A). We believe that the provision should be limited to deliberate, wilful or negligent behaviour, which—to be quite clear—could include anti-social, threatening or violent behaviour, applicants who have previously wilfully refused to pay their rent and applicants who have deliberately caused damage to their own or to others' property. I believe that the amendment would also make it clear that issues such as low-level rent arrears and problems caused by inefficient housing benefit payments should not affect the priority given to an application.

I raised this issue in the House last week and I have also written to the Minister about it. I therefore hope that it will be possible for him to say something about the guidance on it. Although I realise that priority should be left to the discretion of individual authorities, I am sure that the Minister will agree that the housing Green Paper set out a framework giving priority to housing need and that that is what this Bill is about. So far, the draft guidance that I have seen seems very weak. We have established during the Bill's passage that the practices of some local authorities leave much to be desired.

I hope that the Minister can reassure me on those points. I should be particularly grateful if he would emphasise the types of circumstance in which he could not envisage priority being reduced.

We have come to the end of the Bill's passage. As the noble Baroness, Lady Hanham said, it has not been particularly controversial. I think that we all hope that the Bill is passed and that its operation is as successful as we have discussed. However, its success will depend on resources. I therefore hope that the Minister will reassure us that, at least after one year, there will be a review of the legislation's operation and cost. Some local authorities are concerned that the department's estimates do not reflect the true costs.

As I said, I very much welcome the Bill. In another place, I took part in the passage of the Housing Act 1996. I was very disappointed that it took so long to pass that legislation, which had previously been piloted through Parliament as a Private Member's Bill by Stephen Ross, the then Liberal Democrat—or Liberal—MP for the Isle of Wight. I am also sorry that it has taken us so many years to put right some of the things that we got wrong in that legislation. Nevertheless, as I said, we welcome the Bill, and we thank the Minister for the constructive way in which he has dealt with all our queries. I beg to move.

4 p.m.

The Earl of Listowel

My Lords, in relation to Amendment No. 2 I echo the concerns expressed by the noble Baroness, Lady Maddock, that adequate funds will be made available to put into practice this Bill, which has received such wide support in the House and whose importance we all recognise. The Government set aside £8 million for local authorities to meet their additional costs. The Local Government Association estimates that the actual costs will be double that sum or more.

As the noble Baroness requested, perhaps the Minister will indicate whether or not the Government will be reviewing the cost to local authorities in the first 12 months after the Bill comes into operation in order to ensure that no additional financial burdens are being placed on already over-stretched local authorities.

Lord Falconer of Thoroton

My Lords, I deal first with Amendment No. 2. Authorities may wish to take account of both good and less good behaviour, where that has been demonstrated by individual applicants. I have previously given as examples two applicants, one with a history of persistent but minor rent arrears and another who has demonstrated that he or she is a model tenant. All other factors being equal, the authority may consider the latter deserves more priority than the former. The qualification imposed by the amendment would then be wholly inappropriate.

However, I know—the noble Baroness has made it clear to me personally and in correspondence—that the noble Baroness has genuine concerns and perhaps I can try to address those and seek to reassure her. One such concern is that some authorities are not paying heed to current guidance that urges authorities not to exclude people from the housing register for low-level rent arrears, and urges them to take housing need into account before making decisions to exclude.

I would point out that the statutory guidance that is currently in force regarding Part VI of the 1996 Act is that issued in December 1996, and does not address those issues very forcefully. Indeed, at paragraph 4.27 it suggests that the groups that authorities may wish to exclude as non-qualifying persons might include tenants with a record of rent arrears. Although this Government issued revised guidance on Part VI for consultation in 1999 which addresses those issues more fully, that does not have statutory force. Authorities therefore are not required by law to have regard to it.

I can assure the noble Baroness that the guidance that will he issued in support of the Bill will include robust guidance on the issues that she is concerned with here. We will make clear, for example, that in making any decisions as to the degree of priority that should be given to individual applicants, the level of their housing need should be a factor that is taken into account. We will also make clear that it would be unreasonable and inappropriate for an authority to reduce priority because of rent arrears that are due to housing benefit delays beyond the control of the applicant.

Another concern of the noble Baroness is that she has seen an early draft of the guidance that she feels is weak on some of these points—if that is not understating the position. I hope she will let me reassure her that the guidance is still very much in development. It has moved on from the earlier draft. There will be an opportunity for detailed consideration of this, and an opportunity to take me to task if I have not met the various commitments made during the passage of the Bill, when we consult on that guidance.

I hope that provides some reassurance on the points made in relation to the amendment. The noble Baroness and the noble Earl, Lord Listowel, raised the issue of resources. This is not the appropriate place to talk about resources but perhaps I can say, as we announced towards the middle of last month, that we have set in place the introduction of a homelessness directorate that will take on what the Rough Sleepers' Unit did, what the Bed and Breakfast Unit did, and the other aspects of central government's activities in relation to homelessness. I hope that at about the same time as this Bill becomes law, it will be possible to make an announcement about its activities.

Baroness Maddock

My Lords, I thank the noble and learned Lord for that very full reply. He has satisfied me on the points that I raised.

Given the fact that the guidance was not ready during the passage of the Bill, perhaps he will be in a position to enable us, at some future date, to debate the issues and discuss some of the genuine concerns that have been raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Minor and consequential amendments]:

Lord Falconer of Thoroton moved Amendment No. 3: Page 15, line 44, leave out "195(6)" and insert "195(8) The noble and learned Lord said: My Lords, on Report the noble Baroness, Lady Maddock, helpfully identified a numbering error in one of the suite of amendments that I tabled which were intended to bridge gaps in the provisions of the Housing Act which allow housing authorities to secure accommodation for homelessness applicants pending a review by the authority of its homelessness decision and pending an appeal to the county court on a point of law. This is a purely technical amendment to correct the error.

The noble Baroness raised a number of other issues and permitted the amendment to go through on the basis that I would deal with those points. Though it is not strictly germane to my amendment, perhaps I can take this opportunity to clarify a point that was raised during the passage of the Bill in relation to non-priority need applicants.

The issue is that local authorities should have a duty to secure accommodation for applicants who are homeless, eligible for assistance and in priority need. At the inquiry stage there is an interim duty to accommodate if the authority has reason to believe that applicants may meet those criteria. Where, following the inquiries, the authority is satisfied that those criteria are met, it must accept the main homelessness duty to secure accommodation. Where the authority is satisfied that there is eligibility and priority need, but considers that the homelessness was intentional, there is a power to accommodate pending a review or appeal.

Elsewhere the Bill gives authorities a discretionary power to assist applicants where they are satisfied the applicant is eligible, unintentionally homeless and does not have a priority need. The purpose is to ensure that authorities are able to assist such applicants, including by securing accommodation, where local circumstances and resources allow—for example, in areas where housing demand is low.

While one effect of that is to give authorities a general power to accommodate such applicants pending reviews and appeals, that is not its main purpose. Nevertheless, it has been suggested that it is inconsistent that authorities should have a power to accommodate where they are satisfied that such applicants do not have priority need, but they do not have a power to do so, pending inquiries, where they are not so satisfied.

I have explained the rationale behind the powers which are explicit in the homelessness legislation; that is, taking together the current provisions in Part VII of the Housing Act 1996 and the provisions in the Bill. However, in the absence of a specific power in the homelessness legislation, it would be open to authorities to decide to use the "promotion of well-being" power in Section 2 of the Local Government Act 2000 to accommodate homeless applicants where they consider that would promote or improve the social well-being of the area and was consistent with any community strategy prepared under Section 4 of the 2000 Act.

As this will be the last time I speak in the course of the passage of this Bill, perhaps I can thank all noble Lords who contributed to the debate, which has been in the main incredibly constructive. Together we have improved the Bill. Also, I thank the Bill team for the work they have done and for their support, which has helped the deliberations of the House: Avril Huston, Alan Edwards, Bronwyn Hill, Duncan Campbell, David Gleave, Paddy Knowles, John Wright, Katie Goodall and Tom Walker in my private office. I beg to move.

Baroness Maddock

My Lords, it would be very ungracious of me not to welcome this amendment. I too am grateful for advice from Shelter and the housing law practitioners association which enabled me to bring forward the amendments. Again, I thank the Minister for all his support during the passage of the Bill.

On Question, amendment agreed to.

On Question, Bill passed, and returned to the Commons with amendments.