§ House again in Committee on Clause 54.
§ Baroness Maddock moved Amendment No. 58A:
Page 36, line 15, at end insert—
( ) The appropriate national authority may by order prescribe descriptions of HMOs for the purposes of subsection (2)(a) to which this Part does not apply.
§ The noble Baroness said: I rise to move Amendment No. 58A, which yesterday was tabled as Amendment No. 65A. I shall speak also to Amendment No. 62A, which yesterday was tabled as Amendment No. 65B, and also to Amendment No. 65.
§ The first two amendments deal with the meaning of "house in multiple occupation" and consider the removal of some exemptions. Clause 217(5) excludes houses in multiple occupation that are owned or managed by bodies listed in Schedule 11 from the meaning or definition of "a house in multiple occupation" except for the purpose of Part 1 relating to HHSRS. This has the effect of excluding many high risk properties in multiple occupation that are currently defined as houses in multiple occupation, including buildings controlled or managed by local housing authorities, registered social landlords, educational establishments and religious communities, from the new houses in multiple occupation definition, for the purposes of the mandatory houses in multiple occupation licensing regime 310 introduced in Part 2, for the purposes of any local discretionary extension to the mandatory houses in multiple occupation licensing scheme under Part 2, and all statutory management requirements relating to houses in multiple occupation. These include not only those introduced by Clause 66 in Part 2—licence conditions—and Schedule 4—mandatory licensing conditions—but also those contained in Clauses 197 and 198 of Part 7—approved codes of practice and management regulations in respect of houses in multiple occupation.
§ This might be somewhat of a retrograde step as the current Housing (Management of Houses in Multiple Occupation) Regulations 1990, introduced under Section 369 of the Housing Act 1985, apply to all houses in multiple occupation regardless of which body is responsible for controlling or managing them. These amendments would ensure that the statutory meaning of a house in multiple occupation would apply to all houses in multiple occupation meeting the tests of multiple occupancy as set out in Clauses 217 to 222 regardless of the status of the current landlord. This would ensure that the definition of a house in multiple occupation reflected solely the nature of its occupancy and the inherent health and safety risks of that type of occupancy rather than the owner or manager of the premises. It would ensure that the approved codes of practice and management regulations relating to houses in multiple occupation in Part 7 would apply to all those responsible for managing a house in multiple occupation, including local housing authorities, registered social landlords, private landlords, educational establishments, including private contractors, and voluntary bodies. This would create a level playing field for houses in multiple occupation management with the aim of ensuring the health and safety of all those residing in accommodation in multiple occupation.
§ The amendment would also allow local housing authorities to extend local discretionary housing for multiple-occupation licensing to properties that might be exempt from the mandatory scheme under Clause 54(3). They also might wish to license them under Clause 55 powers. For example, if an authority considered that a significant proportion of university houses in multiple occupation in its locality were inadequately managed and that that had an adverse effect on the residents or the local community, it could designate those houses in multiple occupation for additional licensing.
§ The Bill is the first legislation to exclude such a wide range of accommodation from the meaning of "house in multiple occupation" on the basis of who the landlord is, rather than the physical nature of the accommodation and occupancy arrangements. The Bill repeals the 1985 Act provisions and directly links minimum management standards to houses in multiple-occupation licensing, so that only licensable houses in multiple occupation are subject to the standards.
§ As drafted, the Bill represents a retrograde step in relation to the housing management standards arid the associated health and safety risk to residents of some 311 houses in multiple occupation. A better approach would be to exempt certain categories of house in multiple occupation from licensing through secondary legislation, in cases where alternative regulatory regimes are more appropriate. An example would be registered social landlords regulated by the Housing Corporation. It does not make sense to exempt them from the legal minimum management standards for houses in multiple occupation altogether.
§ Despite being pressed on the issue when it was discussed, the Housing Minister in another place did not explain why the Government had changed their position on that since their 1999 consultation on the licensing of houses in multiple occupation. I would be grateful if the Minister could say something about that.
§ A number of people are concerned about the issue. The amendment has the support of Shelter, the Chartered Institute of Housing, the National Houses in Multiple Occupation Network and the National Union of Students. I hope that we can persuade Ministers to delete Clause 217(5) and Schedule 11—the amendment has been de-grouped, but we can deal with it later—and to introduce a power to exempt HMOs owned by particular types of landlord from the licensing scheme. We would like to see that disappear. Amendment No. 65, which is grouped with the amendment, is slightly different. However, it is again about different categories of houses in multiple occupation. It concerns self-contained flats. I am grateful to the British Property Federation for bringing the issue to my attention. Clause 220 includes, in the definition of houses in multiple occupation, self-contained flats that are conversions that do not meet the 1991 building regulations. There is a further qualification that blocks of flats where at least two thirds are held on long leases and are owner-occupied will be exempt, but by definition not if more than one third are let or sub-let on short tenancies.
§ The evidence in the regulatory impact assessment on the Bill discussed only bed-sits, not self-contained flats. Very few respondents to the consultation exercise on the Bill specifically lobbied for the inclusion of self-contained flats; only 11 out of 410 respondents mentioned the issue. The inclusion of self-contained flats will be fraught with difficulties, particularly when we look at enforcement. For example, the occupants of blocks of flats can change very quickly, so the property could drop either side of the two-thirds threshold, perhaps quite regularly. Therefore, sometimes there will need to be a licence and sometimes there will not. Very often in a block, there is no specific obligation by anyone in it to monitor who occupies the flats. That creates the problems.
§ Perhaps the Minister can answer some questions on this matter. Who will be prosecuted if there is a failure to obtain a licence when there are long leaseholders in a property? Are the Government seriously suggesting that leaseholders who exercise their right to manage their block under the Commonhold and Leasehold 312 Reform Act 2002—which this House discussed at length—can be fined up to £20,000 for their failure to obtain a licence?
§ At present, local authority houses in multiple occupation registration schemes are based on a one-third threshold and the Government have not given their reasons for changing that to two-thirds in the Bill. In the Commons the Minister stressed that the amendment took away protection introduced in the Housing Act 1996. Apparently that was not the case and officials have since admitted that there was an error. I think that the confusion arose because existing registration schemes work on the basis of exempting blocks of converted flats when at least a third are held on long leases. The Bill specifies that blocks will be included in licensing where less than two-thirds are on long leases. It should be amended so that blocks are included when less than a third are let on long leases, as proposed in the amendment. In other words, if a third are held on long leases the block will be exempt—the same as under the existing registration schemes. The amendment would mean that the new licensing regime would mirror the current schemes of local authorities. Another of the various questions on this matter is what would the transitional arrangements be for properties which are already part of a local house in multiple occupation licensing scheme when this part of the Bill is enacted?
§ These technical amendments involve a great deal of background. I hope that the Minister will accept them on the basis that I am trying to probe how such issues will work and whether we can improve matters to ensure that houses which we wish to see included are not left out. I beg to move.
§ Baroness Hanham
This whole issue of defining what is a house in multiple occupation is fraught and is one of the areas about which we have received most correspondence. The Bill's definitions of who owns and who lives in flats, as described in Clause 221, are specific. Our attention has been drawn to the situation of students in cases where, for example, a parent buys a flat in a university town and five or six students rent it or pay the rent. Usually the flat will be well maintained because there is an investment in it and one of the reasons why the parents bought it was to ensure that the students could live in decent circumstances. However, such flats could be caught by these regulations.
So we need to unpick this matter in some detail, as the noble Baroness, Lady Maddock, said. She has opened the door and we would be interested to hear the Minister's reply. Whatever he says and whatever the noble Baroness says, we need to return to this matter.
§ Lord Rooker
As the noble Baroness, Lady Maddock, said, some of this is technical. Much of what she said initially is also covered by Schedule 11. Although I am happy to deal with that now, we may need more time to deal with it. As that provision has its own grouping, I will, if I may, deal now with Amendments Nos. 58A, 62 and 65. It would be better if I left anything that related to Schedule 11 until we consider that group. That will also avoid repetition.
313 Clause 54 provides for local authorities to licence two groups of HMOs including those that fall within the scope of mandatory licensing as defined by the order. Subsection (3) enables the appropriate national authority to make an order setting out the scope of mandatory licensing for houses in multiple occupation. Our intention is to prescribe for the mandatory licensing of HMOs of three storeys and above in which at least five people live who form more than one household. The other group involves HMOs designated by a local authority as subject to additional licensing under Clause 55.
Amendment No. 58A would allow the appropriate national authority to prescribe descriptions of HMOs which should be excluded from mandatory licensing provisions under Part 2. We believe that the amendment is superfluous. A house in multiple occupation would fall within the mandatory licensing provision only if the appropriate national authority made an order that caught it in the first place. So Wit wishes to exclude any category of HMO all it needs to do is ensure that it is not brought within the order.
That is a fairly technical way of putting the matter. The Government oppose the amendment because we consider that Schedule 11 should be the eleventh schedule to the Bill. The amendment would allow local housing authorities to apply additional licensing to a wide range of HMOs such as its own stock, registered social landlords, university accommodation, buildings otherwise regulated and even owner-occupied dwellings. That is somewhat different from the argument that has been advanced that low-level regulation should be available to deal with specific problems of management failures where they arise in public sector HMOs.
Amendment No. 62A seeks to remove Clause 217(5), which will give effect to Schedule 11. We will deal with that when we come to the Question whether Schedule 11 should be the eleventh schedule to the Bill.
Amendment No. 65 would amend Clause 220 to change the ratio of owner-occupiers to short-term tenants so that only buildings where less than one-third of the flats are owner-occupied, and more than two-thirds are short term tenants, will fall within the definition of HMO.
The current definition of HMOs in the Housing Act 1985 applies to all converted houses, regardless of the standard of conversion or the tenure of occupancy. Clearly, this is not appropriate, since the legislation is primarily intended to target poorer quality accommodation providing homes for some of the most vulnerable members of the community. We have therefore taken the opportunity in this Bill to narrow the definition of HMO to include poorer quality properties occupied by a substantial number of short lease holders or tenants.
The issue of the ratio of owner-occupiers required to exempt a converted building as an HMO was debated in another place but we are convinced that the ratio we have set in this clause is the correct one. Perhaps I should say that it is the one that we favour or prefer; "the correct one" is a pretty bold statement.
314 Adopting the ratio proposed by this amendment would mean that a block of 12 flats would not be an HMO even where seven of the 12 flats are occupied by tenants. We would expect that in this sort of situation where the majority of the occupants are tenants, there would be issues of management in such properties, and it is therefore important to classify these properties as HMOs in order to provide adequate protection for the tenants.
The Government believe that owner-occupiers are in a position to exercise their contractual rights and require minimum standards to be enforced. Where they are not happy with the management arrangements they can apply to a leasehold valuation tribunal to appoint a manager of the block.
Tenants, on the other hand, are not in the same position. In fact, many problems associated with HMOs, such as poor maintenance and management, are as a direct result of the absence of the "landlord" leaseholder. But, of course, many blocks at which the legislation is aimed are owned by single individuals or companies, were converted many years ago and are occupied by elderly or other vulnerable people. It is often these blocks which are a cause for concern in terms of the health and safety of the occupiers. Often those houses are not fitted with adequate smoke detection equipment. The Building Regulations 1991 require alarms to be mains fitted and thus always working.
According to government research into fire safety, published in 1997, persons living in houses converted into self-contained flats are twice as likely to die from fire as those living in comparable single-occupancy houses. That must be a compelling reason to ensure that legislation on houses in multiple occupation is available to protect tenants living in these poor conversions.
However, we do not agree that the legislation should apply only where fewer than one-third of the flats are owner occupied. The Government are aiming to achieve the protection of tenants living in houses in multiple occupation where a substantial proportion of the flats are let on short tenancies. The amendment would be contrary to that. We shall have several debates about the definition of houses in multiple occupation and what it should cover.
I want, if I can, to stick to the narrow point of the amendment each time. In some ways, we can sweep up some of the issues that we have not dealt with in discussing the technicalities of the amendments when we debate whether Schedule 11 should stand part of the Bill.
I have one other point to make. I was asked whether the long leaseholder would be prosecuted for failing to get a licence. The answer is that the freeholder would be prosecuted. The question was also raised as to whether leaseholders who exercise the right to manage are liable to prosecution if they fail to get a licence. The answer is yes. I was also asked about the power to modify applications of the Bill in the case of blocks of flats. We recognise the difficulties involved in that respect but we do not intend to extend mandatory 315 licensing to blocks of flats. I hope that that is a satisfactory response to the specific questions asked by the noble Baroness.
§ Baroness Maddock
I thank the Minister for that reply. As he said, these are fairly technical matters and I shall look in a little more detail at what the Minister said. With regard to Amendments Nos. 58A and 62A, there is a concern that a better approach than that adopted in the Bill would be to have a broad definition to exempt through secondary legislation certain categories of houses in multiple occupation from licensing, particularly in cases where alternative regulatory regimes are more appropriate. We shall discuss those in later debates on the Bill. I am concerned that, as the Bill stands, houses in multiple occupation owned or managed by certain bodies are exempted from the definition and from the legal minimum required for houses in multiple occupation. However, I shall look at what the Minister said and it is possible that we may need to return to this matter.
With regard to Amendment No. 65, I hear what the Minister says. Before the dinner break, the noble Lord, Lord Bassam, said that the Government would monitor how things work out. I think that the leasehold aspect may be an area that will need to be monitored. I find the subject of leasehold incredibly complicated and shall take advice on that. In the mean time, I thank the Minister for his careful explanation, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Maddock moved Amendment No. 59:
Page 36, line 29, at end insert "; and
( ) to adopt a co-ordinated approach in connection with dealing with homelessness, empty properties and antisocial behaviour affecting the private rented sector—
§ The noble Baroness said: In moving Amendment No. 59, I shall speak also to Amendments Nos. 62 and 88. Amendments Nos. 59 and 62 go together, more or less, and deal with aspects of homelessness. One matter of concern, particularly to those who work with the homeless, is that tenants could be left homeless as a result of landlords withdrawing from the market, especially when refused a licence under the scheme. We believe that measures to regulate houses in multiple occupation must take account of the risk that, in response, landlords may choose to end a tenancy or stop letting altogether.316
§ At present, the Bill contains no measures to help tenants in that situation. We believe that that should be remedied by linking houses in multiple occupation licensing more closely with the local homelessness strategies. I hope that we can persuade Ministers—perhaps they are planning this—to issue guidance to local authorities, encouraging them to work strategically to prevent and alleviate homelessness caused as a result of houses in multiple occupation licensing.
§ Clause 54 introduces mandatory licensing of larger, high-risk houses in multiple occupation. Clauses 55 and 56 will allow discretionary licensing if a housing authority wants to extend the licensing regime to other houses in multiple occupation in certain circumstances. Clause 56(3) requires an authority introducing additional houses in multiple occupation licensing or selective licensing to adopt a co-ordinated approach to dealing with homelessness affecting the private rented sector.
§ This group of amendments was around when the Bill was discussed at the other end. However, as the Minister and I know, whereas here we choose to debate every amendment, down the other end they are selected and sometimes amendments fall out. The issue was raised, and the Parliamentary Under-Secretary of State, Yvette Cooper, made a statement to the effect that those who became homeless unintentionally were clearly already covered by the local authority's usual obligations for support for homelessness, which include advice and assistance. As Clause 56 mentions explicitly the importance of homelessness and links it with the homelessness work of local authorities, she felt that the amendments were unnecessary.
§ It may be that the amendments are not quite what we need. However, local authorities must be aware of the impact of licensing on homelessness in their area. We hope that the Minister will give a commitment that the guidance accompanying the Bill will encourage councils to be proactive in working to ensure that tenants from houses in multiple occupation are prevented from being made homeless where possible and are offered the advice and assistance that they need.
§ It is essential that local authorities plan carefully how they introduce licensing to ensure that they have the capacity to deal with the properties that need to be improved to meet licensing requirements. Indeed, we talked about proportionality in this area earlier this evening.
§ Amendment No. 88 is slightly different. Again, at this stage we are probing some of the issues. I really wanted to press the Minister on the Government's intention regarding the use of references. Schedule 4 states that a licence must include conditions requiring the licence holder to demand references from persons who wish to occupy the house. Again, this was another amendment which was not debated in another place. Everyone accepts that one of the reasons for selective licensing is to prevent anti-social behaviour and that vetting tenants may be one way to do that. However, we should like the Minister to clarify exactly how he 317 sees that working out. Many of us know that some of the most vulnerable tenants end up being housed in some of the worst housing. It is always possible that some people will be excluded and have nowhere to go. So, we need to think carefully about this, and I have one or two questions to ask. What types of reference do the Government think would be sufficient? Who would be accepted as appropriate referees: employers, doctors, holders of finance records, support workers? This is important with vulnerable tenants. What is the intention of the measure? Is it to help flag up the support that some vulnerable tenants might need? If so, how can we ensure that they receive the support services they need? If vulnerable tenants cannot supply references, would that mean that there will be problems, in general, with their housing?
§ I hope that the Minister will accept these again as probing some of the issues that surround what is quite technical and complicated legislation. I look forward to hearing his response. I beg to move.
§ 9.15 p.m.
§ Lord Rooker
Amendment No. 59 imposes a general duty on local housing authorities to ensure that licensing would form part of a co-ordinated approach to dealing with the wider housing issues, including homelessness, empty properties and, indeed, antisocial behaviour in the private sector.
Amendment No. 59 is inconsistent with the intention of Clause 54, which is to require the licensing of certain categories of houses in multiple occupation by local housing authorities. Where a property falls within the scope of mandatory licensing, the local housing authority will have no option but to license it. We do not think there should be scope for the local housing authority to consider if licensing the HMO under Clause 54 would be in line with its approach to homelessness, empty properties and anti-social behaviour.
The Government have always stressed that the main reason for introducing the HMO licensing scheme is to ensure that there are adequate standards of management in HMOs and therefore provide protection for the occupants who are often the most vulnerable in the society.
Mandatory licensing is aimed at the most high-risk properties of three or more storeys and occupied by five or more persons who form more than one household. We believe that occupiers of these sorts of properties need the protection that would be provided without a doubt by licensing, which is why we have provided that they should be compulsorily licensed. The local housing authority should not have any discretion when licensing an HMO under Clause 54, which would be implied by Amendment 59.
However, we appreciate the fact that the pressure on housing is not the same in every area of the country. HMOs are not the same in every area of the country, but the general point about the safety aspect of people living in HMOs is a nationwide issue. It is therefore important that local housing authorities consider ways of co-ordinating licensing with the local housing needs 318 in the area. That is why Clauses 56(3) and 78(3) provide that in making designations for additional and selective licensing, local housing authorities take their wider housing issues such as homelessness and antisocial behaviour into consideration.
Additionally, the local housing authority is required to be satisfied that no available tool could be used to deal with the identified problem in the relevant areas without the need to resort to licensing.
Amendment No. 62 is a technical amendment. I shall not go over that as it just provides the definition.
Amendment No. 88 would have the effect of removing the requirement to demand references from a potential tenant from the mandatory conditions of a Part 3 licence and instead allow local authority discretion as to whether it attaches this condition to a licence granted under Part 3. We do not think that it is an unreasonable requirement of a landlord. Most landlords letting properties in high-demand areas already require references. While selective licensing will be applied in areas which are low demand, and accordingly have fewer potential applicants, the failure of a tenant to provide a reference or the provision of a negative reference should alert the landlord that by accepting the applicant as a tenant the landlord may need to be prepared actively to address any anti-social behaviour.
There is no reciprocal requirement that a potential tenant should supply references in response to this demand, nor does the clause specify that the reference must be derived from a previous landlord. For that reason we do not accept the contention that the request for references could exacerbate the situation of those who experience social exclusion. In any case, we are not convinced that a perception that some potential tenants might have legitimate problems in obtaining references should lead to the conclusion that landlords should be relieved of an obligation to ask for them.
The amendment, if accepted, would produce the unusual result of it being mandatory for the local authority to impose a reference condition upon selectively licensed landlords, but only if it wished to do so. It is our belief that this is an important step towards better standards of management in selectively licensed areas and it should retain its mandatory status to ensure uniformity across the country. This is a new exercise. It is not an unreasonable requirement of a landlord, because it is the norm for the vast majority of people. We are moving into a technical area of the legislation.
Amendment No. 87 is grouped on my list with those to which I have just spoken, but the noble Baroness, Lady Hanham, did not mention it because it is in the name of the noble Lord, Lord Hanningfield. I shall not respond to it because it has not been spoken to.
§ Baroness Maddock
I thank the Minister for his reply. The amendments were moved in a probing spirit. With regard to my Amendment No. 59, vulnerable people need protection. I was hoping that the Minister would assure us that local authorities would be made aware in guidance of the problems that 319 could occur and thereby be ready to deal with them. That is not to say that I do not think that the situation should be as the Minister described.
With regard to Amendment No. 88, it is not unreasonable that people should have to provide a reference. I asked what types of reference would be required. Perhaps that will be explained in guidance and the Minister does not know, but it would be helpful if he could look at the questions that I asked and give me an answer at some point. We may need to return to the matter.
§ Lord Rooker
I would be more than happy to take advice on that question and write to the noble Baroness about the kind of reference required. However, I made it clear that the reference would not necessarily be from the previous landlord. There is obviously some scope in the legislation, but I shall be happy to write to the noble Baroness before the next stage of the Bill, so we should have plenty of time.
§ Baroness Maddock
That would be very helpful. As I have said, these issues have been raised with me by Shelter and others who work with homeless people. They are concerned that things could happen. In regulating houses that are not well managed or looked after, they want to ensure that we do not make people fall off the end, so to speak, as a result of our enthusiasm to deal with such housing. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Hanham
Amendment No. 87 is grouped on its own much further down the list. I am sorry that I looked slightly blank when the Minister mentioned it. It is way down the list, after Amendment No. 86.
§ The Deputy Chairman of Committees (Lord Geddes)
It may be of assistance to the Committee if I point out that Amendment No. 87 is indeed grouped on its own, in chronological order, over the page, between Amendments Nos. 86 and 89. There appears to be a typographical error in its being grouped with Amendment No. 59. It appears twice on the list and I imagine that it will be spoken to on its own in its correct place.
§ Baroness Maddock moved Amendment No. 60:
§ Page 36, line 37, leave out "5 years" and insert "12 months"
§ The noble Baroness said: I hope that Members of the Committee are not too bored by my moving amendments. I shall stop at some point. I shall be a little more brief on this amendment.
§ This issue was raised by members of the Local Government Association, although they would frame it in a different measure. The amendment relates to the time that landlords have to deal with category 1 hazards. As the Bill stands, landlords can have, in extremis, five years to deal with those hazards. The Local Government Association thought that they should perhaps have three years, but the one year that 320 we have specified in the amendment is in line with the wishes of the Chartered Institute of Environmental Health.
§ The amendment reflects the concern that houses which are licensed by local authorities and which contain a serious category 1 hazard could, in theory, remain occupied for up to five years without any action being taken to require the removal of the hazard. I am sure that the Government do not intend that to happen and that there are caveats that the Minister can explain.
§ We are trying to reduce the period in which local authorities must have satisfied themselves that there is no Part 1 function to be exercised. Local councils must take action against seriously unsatisfactory living conditions, category 1 hazards and poor management. Given that we are talking about the vulnerability of clients in houses of multiple occupation, a five-year time frame is too long. A local authority should be able to assess and deal with such properties in a much shorter time.
§ I hope that the Government are minded to look carefully at the matter. Perhaps the Minister will convince me that somehow such circumstances will not arise very often, but it is a great concern. Despite our earlier discussion about whether people should be able to go in the middle of the night to deal with hazards, in this provision we are enabling local authorities to leave some cases for five years. I hope that the Minister will respond suitably. I beg to move.
§ Lord Rooker
During our debate on the previous group of amendments, a comment was made about amendments in the other place. Every amendment is selected in the other place if it is in order, although it may not always be debated. We do not have such a process in this House, but we try to debate the amendments that the other place has not debated. I give advance notice that both amendments in this group were debated in the other place in Committee and on Report, so my answer should not be new. I hope that it is exactly the same as the one that my ministerial colleagues used in the other place.
As the noble Baroness said, Amendment No. 60 would substitute a period of one year for the five years specified in the Bill. The amendments were debated in the other place, following which we did not think that it was worth changing the period at present.
Clause 54(5)(c) makes clear that local authorities should aim to determine those matters well within the five-year maximum period. We send that signal to local authorities by the use of the words,as soon as reasonably practicable".Local authorities know the properties in their areas and can decide how best to carry out this duty. They should be able to prioritise cases on the basis of information supplied to them at the time the application is made.
There should be no surprises for local authorities regarding the properties that they have. One of the most successful ways of collecting tax in this country is taxing property, because it does not move—whether it 321 be through rates or council tax, the property does not move. There are therefore no grounds for arguing that local authorities cannot make a plan to prioritise.
Due to the concentration of houses in multiple occupation (HMOs) in certain areas, some local authorities may not have the resources to inspect all HMOs subject to licensing within the first few years of the operation of the scheme. We would not wish to add to the burden of all local authorities by imposing a shorter period. However, we are confident that the pressure on local authorities, not least from private tenants, will be to achieve the shortest possible time-scale. It makes sense that local authorities target high-risk properties first—there should be no surprise regarding what those properties are.
If local authorities carry out their duty to consider health and safety issues diligently and as quickly as they reasonably can, category 1 hazards will be progressively eliminated from houses in multiple occupation. We expect that, for the highest-risk properties, prioritisation will ensure that that happens at the earliest opportunity.
A key purpose of licensing houses in multiple occupation is to ensure that landlords are "fit and proper" persons and follow a code of management practice that the Bill will prescribe. The other aspect of mandatory licensing will identify where the most at-risk HMOs are and ensure that they are targeted by the new housing health and safety rating system. We would all agree that, ideally, we want all properties to be properly managed and free of hazards. That is a reasonable expectation for everyone. The proposals in the Bill are a sensible attempt to get the best possible result.
Licences will last for a maximum of five years, and it is a requirement on local authorities to consider the health and safety aspects of every house in multiple occupation as early as possible and at least during the lifetime of the licence, with priority given to high-risk properties. We expect local authorities to have the necessary resources to carry out checks on their stock within 12 months. They ought to be able to do that as it would be practicable to take the matter sensibly and literally prioritise those at high risk.
Amendment No. 61 would allow a local authority to apply to the appropriate national authority to extend the 12-month period proposed in Amendment No. 60. The local housing authority would have to demonstrate good cause why an extension is necessary. Although Amendment No. 61 would mitigate the impact of Amendment No. 60 by allowing local authorities to seek an extension of the period, that, frankly, is overly bureaucratic.
I know that we are regulating in a new area, but we genuinely want it to be as practical, least bureaucratic and light touch as practically possible. Some 20 years ago old Labour, if I can use the term, would have probably gone for a wholesale licensing of every property regardless of risk. We would have taken a 322 blunderbuss approach with lots of red tape and bureaucracy. We do not do that these days: we are a much more practical, listening Government.
Therefore, we want to have as light a touch as is consistent with making sure that we have decent safety standards for people in houses in multiple occupation. It is not sensible to ask all localising authorities that cannot meet such a shortened deadline as 12 months for assessing all HMOs in their area to make an application to the appropriate national authority. That is one less piece of red tape. I accept the reasons why the noble Baroness made this point. We think that it is better to provide that they should do so within five years of the licence, and that they will deal first with those at high risk well within a five-year period. If they do not, many local people will ask why not.
§ Baroness Maddock
I thank the Minister for that explanation. I am not sure that he did not convince me even more that 12 months was the right answer. It is interesting, because the Local Government Association has been asking for it to be reduced to three years, and it is at the front end. I will look carefully at what the Minister said and consult with others. We may return to this amendment at a later stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 61 and 62 not moved.]
§ Clause 54 agreed to.
§ Clause 217 [Meaning of "house in multiple occupation"]:
§ [Amendment No. 62A not moved.]
§ Clause 217 agreed to.
§ Schedule 11 [Buildings which are not HMOs (except in Part 1)]:
§ Baroness Maddock moved Amendment No. 63:
§ Page 226, line 5, at end insert "or section (Duty of care for those having control or managing a HMO)"
§ The noble Baroness said: Amendment No. 63 is grouped with Amendment No. 174. These amendments concern the duty of care on landlords of houses in multiple occupation. Amendment No. 174 introduces a general duty of care on all landlords of houses in multiple occupation, as defined by Clause 213. The duty applies to all houses in multiple occupation, including houses—such as houses owned or managed by a registered social landlord and universities—that are currently excluded from the houses in multiple occupation definition in Clause 213(2) and Schedule 11. The wording of the duty is based on the existing duty of care in the Defective Premises Act 1972 arising from defects in a property.
§ The amendment would ensure that landlords who breached the duty faced a criminal sanction. It would also place local housing authorities under a duty to have regard to the general duty of care when assessing health and safety conditions relating to interim management orders under Clause 99(4). In addition, by its nature as a statutory duty, ally breach of a duty of care would allow the resident of a house in multiple occupation to bring a civil action for damages and/or all injunction.323
§ Amendment No. 63 applies to Schedule 11. It disapplies the schedule in respect of the duty of care. Can the Minister explain why the Office of the Deputy Prime Minister has changed its view on the duty of care in houses in multiple occupation since it consulted on this in 1999? The duty of care remedy is vital to tenants in houses in multiple occupation, especially if they wish to take their own action against their landlord to prevent risks to their health and safety, including their safety in the event of fire, which is another issue that we discussed earlier. It is also vital to prevent the Bill being a retrograde step for tenants in houses in multiple occupation who are all currently entitled to live in homes that meet the fire safety standards in Part XI of the Housing Act 1985, which this Bill repeals.
§ There has been extensive discussion on this in another place, but without the proposed amendments many tenants in houses in multiple occupation will have no remedy with which to take direct action against their landlord in order to prevent risk to their health and safety, particularly in the event of fire. That is particularly true for tenants in houses in multiple occupation that are managed by local housing authorities, social landlords and universities.
§ As I said, the Bill is a retrograde step. It goes back on the duty of care that exists. I hope that the Minister can explain precisely why the Government are doing that. I beg to move.
§ Lord Bassam of Brighton
The meat of this group of amendments is built around Amendment No. 174. Amendment No. 63 is technical and consequential.
Amendment No. 174 inserts a new clause after Clause 128 that would impose a duty of care on landlords of houses in multiple occupation to require them to take such care as is reasonable in all the circumstances to see that the occupiers of the HMO were reasonably safe from personal injury or from damage to their property.
I am extremely grateful to the noble Baroness for her explanation. It is not at all clear in subsection (1) of the new clause what the duty of care is in respect of. Is it in respect of management failures that could give rise to injury or damage? Is it concerned with the structure or physical characteristics of the HMO in question? Is it both of those, or is it intended to impose a criminal liability in respect of any act of negligence?
The vagueness of this provision, which is open to wide interpretation but could nevertheless result in landlords being prosecuted for breach of a duty of care—the nature of which they could not possibly ascertain in advance—is one reason why I urge the noble Baroness to withdraw the amendment. But the amendment is also unnecessary and would impose a criminal sanction where a civil remedy is already available. By and large, it is civil remedies that work well in housing legislation.
I am referring to the Defective Premises Act 1972 that applies to all residential premises, including HMOs, where the landlord is under an obligation to maintain or repair those premises. Under Section 4, a 324 landlord is under a duty to take such care as is reasonable in the circumstances to see that occupiers and visitors are reasonably safe from personal injury or from damage to their property caused by a relevant defect. A relevant defect is defined as being one for which a landlord is responsible because of his or her obligation to repair that defect.
I would also remind noble Lords that under the provision in Part 1, local housing authorities will be under a duty to take enforcement action in respect of all residential property, including HMOs, which are in such a condition that they pose a risk to the health and safety of the occupiers.
The current HMO management regulations—the Housing (Management of Houses in Multiple Occupation) Regulations 1990—apply to all houses occupied by persons who do not form a single household. Paragraph 13 of those regulations places a duty on HMO managers to ensure that adequate precautions are taken to prevent injury to residents arising by reason of the design or structural conditions of the HMO. It is the Government's intention to re-enact this provision in the new management regulations to be made under Clause 198. This will apply to all HMOs as defined in the Bill other than those listed in Schedule 11. I think that that probably answers the question posed by the noble Baroness during her contribution about our view on the duty of care remedy.
Paragraph 13 itself imposes a public law duty on the manager because most residents of traditional HMOs will not in practice have recourse to their private law rights to sue their landlord for breach of his statutory duty under Section 4. They may fear retaliatory action, such as eviction, if they do so. That is why we accept that it is necessary to retain this provision to protect those persons. I think that we are probably at one on that point.
However, I find it difficult to agree with the notion that a public law duty should be imposed for every type of HMO, which subsection (5)(a) would create by including those HMOs listed in Schedule 11 within the scope of the duty. Public sector tenants such as those occupying local authority or registered social landlord housing have in general security of tenure and do not risk being evicted because they sue their landlords for breach of statutory duty. Moreover, public sector landlords are controlled by the legal requirement that they act reasonably. Other landlords listed in Schedule 11, such as universities as well as public sector landlords, have a formal complaints procedure to deal with housing condition disputes.
If matters are unresolved, there are procedures to complain to an ombudsman or adjudicator. None of this is available to private tenants living in traditional HMOs. Furthermore, what is proposed will impose a duty of care on freeholders to their long leaseholders if Schedule 11 HMOs were to be included. That duty would not simply be a civil one, which a freeholder does not have to his leaseholder, but one backed by criminal penalties. Perhaps that is not the intention of 325 the amendment, but it would be its consequence. Perhaps the noble Baroness will take on board that point.
We think that we have got it right, although I certainly understand the concerns expressed by the noble Baroness. However, I hope that I have answered her points in my lengthy explanation and that the major issue has been satisfied.
§ Baroness Maddock
I thank the Minister for his reply. I know that Ministers do this all the time, but given the lateness of the hour and the number of amendments I have moved consecutively, I shall have to read carefully what he has said. I am still concerned that the Office of the Deputy Prime Minister has changed its mind on this matter. I did mention the 1999 consultation when moving the amendment. It concluded that powers under housing legislation to deal with multi-occupancy problems were necessary and should run in parallel with the licensing scheme. Indeed, when the draft housing Bill was published in July 2003, the Select Committee that deals with the Office of the Deputy Prime Minister recommended that landlords should be given a duty of care to maintain their properties to certain standards and conditions in order to protect the health and safety of occupiers, and that the Government should consider how the enforcement regime could be framed to give effect to such a duty.
The Minister has answered some of my questions, but I shall first read carefully all he has said. It may be that I shall need to put further questions to him when we reach the next stage. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.45 p.m.
§ Baroness Maddock moved Amendment No. 64:
§ Page 226, line 31, leave out paragraph 4.
§ The noble Baroness said: Amendment No. 64 is concerned particularly with university halls of residence. I am aware that Universities UK does not like it very much, and I am sure that many noble Lords have received that information.
§ As we discussed, Clause 217(5) excludes certain categories of property from the meaning of "house in multiple occupation". Originally, the Office of the Deputy Prime Minister favoured a much broader definition but, since that time, the universities have obviously persuaded the Government that they should not come under the scheme. However, a number of people have expressed concern about the issue, and I hope that the Government will look at it again. Halls of residence are not covered and, although the Minister in another place said that he did not believe that they should be covered, if we are not going to cover them we will need to look at a way of ensuring that standards of management and so on are adhered to. So, in a sense, I am again raising the issue.326
§ For many young students, the move to university is their first experience of independent living, and yet local authorities and student unions have frequently expressed concerns that university accommodation is often poor and even dangerous. I speak from the experience of having had a daughter at university in Cambridge in one of the old colleges, some of which have among the worst accommodation. She was accommodated on the top floor, and I am not quite sure how she would have got out in the event of fire. I do not think there was even a smoke alarm. We need to address the problem. If such accommodation is not licensed in the same way as houses in multiple occupation, we need to ensure that there are reasonable standards.
§ I have received a great deal of briefing but, given the time of night, I have probably said enough to give a flavour of why we should address the issue. As I have said, I do not insist on the same regime as that applying to houses in multiple occupation, but we cannot afford to ignore it. We need to have something in the Bill to ensure good management and safety.
§ Another area of concern is that, as with many other organisations, the universities are now using people in the private sector to take over and manage property; the universities are not doing it themselves. I am aware that the universities are worried about the costs, particularly if they go in for this kind of licensing. It is a problem that we need to address.
§ I hope that the Minister will respond to the amendment in the spirit in which I tabled it. I beg to move.
§ Baroness Hanham
I notice that the noble Baroness, Lady Maddock, addressed herself to paragraph 4(b); I should like to touch on paragraph 4(a) because I am sitting on two sides of a coin here—heads and tails. The heads relates to university accommodation which is privately owned but which is not accommodation such as a hall of residence. Most students live in houses in which they rent a room; or several rent a house and move in together.
Like the noble Baroness, Lady Maddock, I have had children who were students at university, and I know the standard of some of the accommodation. I worry slightly whether it is intended to remove from the Bill the kind of accommodation where someone owns 10 or 15 houses and lets them out to 250 students; where the management is zilch and the ability of students to get hold of anyone is non-existent.
The other side of the coin relates to whether paragraph 4(a) covers the kind of accommodation to which I referred previously, where the parents buy a flat and, presumably, then put themselves in the position of being a landlord to other students if they let them out. Would they be exempted under paragraph 4(a), or would they be caught under other parts of the Bill? That is important, because that accommodation is often extremely good and is let by rather kind-hearted people, who take no advantage of students but make it possible for students to live as tenants of other students or of their parents.
327 Neither part of the proposal has been explained entirely. I worry about the standards of some student accommodation. The noble Lord, Lord Bassam, may know from his experience in Brighton of similar problems.
§ Earl Russell
The amendment draws attention to the fact that the interface between housing law and university housing, like Topsy, has grown—and has done so in a somewhat illogical way. In relation to multiple occupation, universities are outside the system of controls; but in relation to rents, under the Housing Act 1988, universities are inside it. It is possible to argue that that is back to front. Whether one accepts that argument or not, it is about time that someone considered the problem in the round and saw whether they could come up with a logical solution.
The question of houses in multiple occupation is one that I have not seen any need for in times past, but it could well be different in a situation of rapid expansion, which I am told is to come. The expansion in the reign of Elizabeth I, although my wife has persuaded me that it was on a much smaller scale than hitherto supposed, led to considerable tension in student housing: overcrowding, unsuitable accommodation in lofts, lack of ventilation and lack of space. The pressure is obvious, especially if the income depends on packing in more and more students like sardines. If university policy goes on in this way, it may be that there will be a need for this amendment that has not yet occurred.
On the other hand, with rents, one gets a quite different picture. Under the Housing Act 1988, it is absolutely forbidden for universities to subsidise the rent of their halls of residence. The Government thought that they were council houses—this was at the height of Thatcherite dominance. The result is that they must by law charge market rents.
My own college, King's College, London, has a central London site, with a few halls that are suitably close to the college, but those halls must charge central London rents. There is one place where the rents that the students are charged amount to more than the whole of the student loan. The college takes a great deal of flak for that—absolutely unfairly because, legally, the college has no choice in the matter. I have explained that to students year after year, but I cannot get it home to them.
The one issue needs to be looked at with the other, and I hope that we may come up with a somewhat more rational solution than the one we have at present. What we have is a mishmash, for which I can see no possible logical justification. I am extremely grateful to my noble friend for drawing attention to it.
§ Lord Bassam of Brighton
This discussion has been valuable, because it enables the Government from their perspective to clarify how we see the situation operating with regard to HMOs and student accommodation.
328 Amendment No. 64 would remove from the HMO exemption, as provided in dear old Schedule 11, properties managed or controlled by universities and occupied by their students. I should make it clear from the off that paragraph 4, which the amendment proposes to remove, does not provide a blanket exemption from the definition, and thus the HMO-specific regulation provided for in the Bill. Indeed, universities and for that matter other providers of student accommodation will be exempted only if they are specified in regulations made under that paragraph. Even if a university has been exempted by regulation and standards subsequently fall below what is acceptable for the management of a house in multiple occupation, the regulation can be revoked, and the statutory provisions will then apply.
At this point I shall deal with the question asked by the noble Baroness, Lady Hanham, about whether private landlords of students—which is effectively what a parent would be—are exempted under Paragraph 4(1)(a). I have reread the way in which that works and taken some more advice on it and the answer is no. Both Paragraphs 4(1)(a) and 4(1)(b) must be satisfied. The word "and" is the clue.
To deal with the issue at large, at present the Government do not want to impose statutory regulation on universities and other educational institutions. We do not believe that it is necessary and we do not want to place unnecessary burdens on these bodies, the cost of which will ultimately be passed on to the students. Universities are, by and large, responsible bodies and take the health, safety and welfare of their students very seriously, whether in the lecture hall or in accommodation on or off campus. Where a student has a complaint about accommodation, it should be addressed to the university in the first instance and, if not promptly resolved, the matter can be referred to the independent university complaints adjudicator. It is worth reminding the Committee that that facility is not available to all private tenants. They do not have recourse to that form of intervention.
We are aware of the recent National Union of Students campaign highlighting the difficulties that some students in England and Wales have experienced in relation to their accommodation in some halls of residence. We are not convinced that HMO regulation is a solution to those problems. For a start, there is little indication of the scale of the problems, most of which appear to be about physical conditions. Those are issues that can be addressed through Part 1 of the Bill—the health and safety rating system applies to all residential property—and could not in any case be dealt with through licensing of other HMO forms of regulation. If students have grounds for complaint on management issues, they ought to take them to the university authorities in the first instance and thereafter to the complaints ombudsman.
329 The Government are not persuaded that there is a sufficiently strong case for statutory regulation of university-managed accommodation. That goes back to the points I made when we initiated the debate on HMOs about focusing and targeting the effect of licensing on those properties that are most likely to be in the worst condition and to be used by the most vulnerable.
It is worth saying a bit more about this. First, the Government do not intend to exclude other providers, even specialist providers of accommodation, from HMO regulation. Secondly, on Report in the other place, the Minister of State for Housing and Planning brought forward an important amendment to provide that only university-managed or controlled accommodation was exempted from the definition, as opposed to university-owned accommodation. That was in response to concerns that in some cases universities were letting halls out on long leases and transferring the management to the lessee. The amendment puts beyond doubt that the property will be exempted by Schedule 11 only if the university receives the rent from the student tenants, whether or not through an agent.
The Local Government Association and Universities UK have also agreed to set up a project to review best practice in the management of student accommodation in the context of the wider community. Universities UK is also looking into the feasibility of a national approved code of practice for the management of student housing provided by universities. These are positive initiatives. In a sense, they will provide us with what we want. We had some discussion yesterday, I think, about concordat, best practice and working voluntarily as part of partnerships to ensure that we raise standards. That is where the LGA and Universities UK are coming from. I think that that is the best way to deal longer term with issues relating to the physical conditions of buildings.
We understand and appreciate the problem. We are grateful to the National Union of Students for the research it has undertaken and for raising the issue in this way. We do not think that by extending the HMO regime in the way suggested in the amendment is the best way of tackling and dealing with the problem. We think that there are other more appropriate ways of dealing with it and other more appropriate remedies.
The noble Earl, Lord Russell, raised other issues which are a little wide of the matter that we are discussing and related more to rents and rent levels. One has every sympathy with students and parents who provide for them. I suspect that I shall probably fall into that category in the not-too-distant future—I shall apply an advance warning in that regard—so one well understands some of the dilemmas that are faced by students and their parents, when the former live in areas where rents are high. That said, I hope that the noble Baroness will feel able to withdraw her amendment.
§ 10 p.m.
§ Earl Russell
I am grateful to the Minister for his reply. I appreciate that he was entirely unprovided with any warning of the point about the Housing Act 1988. This morning I did not know that I was going to make it myself. However, I would be grateful if the Minister could take it away and think about it because it is causing quite considerable hardship.
§ Lord Bassam of Brighton
I heard what the noble Earl said. I am grateful to him for bringing the point before the Committee. We shall read carefully what he said and reflect on it.
§ Baroness Maddock
I thank the Minister for that helpful reply. It is particularly helpful to hear of the steps being taken by the Local Government Association and Universities UK in considering some kind of national code. However, I remain concerned, particularly about fire. With regard to what I said about my daughter, I remember that the way out three floors up was via a rope ladder. The rope ladder was in the kitchen and that was how she got out. However, I did not mention the relevant university.
The Minister did not mention the scale of the problem. I am not sure that we have considered carefully facts and figures regarding the scale of the problem. I hope that Universities UK and the Local Government Association will give us some idea of its scale. One of the pieces of information that came my way when I prepared for the debate was quite frightening. Manchester University owns and manages about 50 halls of residence that are HMOs around the city. The majority of them are purpose built, are at least three storeys high and go back some 50 years. In 1997, in preparation for using this accommodation for the Commonwealth Games, the local authority undertook a comprehensive inspection programme and discovered large-scale disrepair and that much of it related to the management of fire safety precautions.
I recognise that that is a difficult matter as when I was a student young men delighted in getting out the hoses. The disrepair included inadequate or missing fire alarms and the replacement of fire doors with inadequate alternatives. There is an issue here. I shall read what the Minister has said and hope that the situation will improve. The Minister said that where standards fall below the required level for exemption, action would be taken. However, it is not clear to me how the statutory provisions will kick in. I may have more questions at another stage but given the lateness of the hour I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.