HL Deb 03 November 2004 vol 666 cc311-26

3.14 p.m.

Read a third time.

Clause 5 [Category 1 hazards: general duty to take enforcement action]:

Baroness Hanham moved Amendment No. 1:

Page 5, line 25, at end insert—

"(h) serving a deferred action notice under section 86 of the Housing Grants, Construction and Regeneration Act 1996 (c. 53) (power to improve enforcement procedures) as specified in the Housing (Fitness Enforcement Procedures) Order 1996 (S.I. 1996/2885)."

The noble Baroness said: My Lords, the previous Conservative government introduced the "minded to" procedure as part of their deregulation programme. It was intended as a deregulatory measure to save costs and avoid formal regulatory action in cases where it could be avoided. It is somewhat ironic that the present Government are seeking to repeal the proposal also as a measure of deregulation. So, one deregulation cancels out another deregulation.

Presumably, the Office of the Deputy Prime Minister sees this as an opportunity to go a little way to meeting the targets for the number of deregulation measures that it is expected to introduce. Unfortunately, we take the view that it has the opposite effect. The previous government introduced the measure because of considerable pressure from landlords and their representatives, who complained that local authorities were heavy-handed when it came to serving notices.

Under the "minded to" procedure, before serving a formal notice the local authority must serve a notice of its intention to do so as well as give the landlord an opportunity to make representations. Most importantly, that includes the right for the landlord to appeal in front of an officer appointed by the local authority to make representations before any formal action is taken. It is therefore not simply a preliminary notice. Rather, it is a means by which representations can be made. The procedure can also be overridden in urgent cases.

It is of concern to us that it is now proposed that this procedure should be repealed despite the fact that it has worked well in practice. It has removed a long-running source of friction between local authorities and landlords. It enables structured negotiations to take place. It has often resulted in more time being given to do the work where necessary or for satisfactory substitute works to be agreed on.

A further important issue is fees. Where formal notices are given currently, they attract a levy of up to £300. Fees of that magnitude have inevitably led to hostility between landlords and environmental health officers. The fees can be avoided where matters are resolved under the "minded to" procedure. The abolition of the procedure will undoubtedly lead to more appeals being made to the residential property tribunals, if only on a protective basis so that negotiations can then take place.

Virtually no extra work is generated by the procedure, and in any case, in urgent cases, there is a right to override it. We are concerned that the removal of this preliminary procedure sends out the wrong messages to landlords. I beg to move.

Lord Bassam of Brighton

My Lords, I hope that the noble Baroness does not think ill of what I have to say on the amendment, but we have had it twice before. I congratulate her on her persistence; her persistent behaviour at the Dispatch Box is a joy to behold. However, I am a little surprised that she has returned with the amendment. We have given a fairly full response on the issue.

On reading Hansard, I thought that she—and perhaps the noble Lord, Lord Hanningfield, who sits beside her—would by now have been satisfied with what was said. On 20 July, the noble Lord said: I totally agree with most of what the Minister has said because there has to be the ultimate sanction of enforcement. One wants to try to do remedial work … with the minimum of fuss. It is best to let them happen rather than go through lots of bureaucratic procedures".—[Official Report, 20/7/04; col. 163.] Having read that, I concluded that the noble Baroness was likely to be satisfied with the situation as we left it after Committee and also after Report. So she will not be surprised that I am puzzled at the current situation.

Perhaps I can remind the House of where we are on the issue. Clause 5 imposes a general duty on a local authority to take the appropriate enforcement action in relation to a category 1 hazard existing on residential premises. Authorities must select the appropriate enforcement action from the options provided in subsection (2).

As I explained in Committee, the amendment is defective if its intention is to retain the "minded to" procedures in the 1996 Act. That seems to be what the noble Baroness is after. At the risk of repeating myself, I put on record again that the amendment seeks to add deferred action notices under Section 86 of the Housing Grants, Construction and Regeneration Act 1996 to the range of enforcement options available to an authority to deal with a category 1 hazard. For what it is worth, deferred action notices are provided for under Section 81 of that Act.

Nevertheless, we all know that Section 86 deals with what are known as "minded to" notices, and it is clear from this and our earlier discussions that those are in fact the target of the amendment. "Minded to" notices are part of a pre-notice procedure under which the authority must give the reasons for its proposed action before it moves to take the action formally. It may be a pedantic point, but they do not amount to enforcement action in themselves. Quite apart from the case for retaining the procedure, I cannot agree that they belong in Clause 5.

I ought to say categorically that the Government are in no way trying to come down heavily on private landlords, or any landlords or property owners, through the repeal of the "minded to" notices. We are genuinely seeking to deregulate, and we are confident that the procedures under the enforcement concordat are sound. We first consulted on the measure in 1998, so the issue has had a fairly thorough airing.

I have explained our reasons for opposing the amendment in principle. Even if the House does not share my views on the principle, it is hard to see how we can get beyond the technical difficulties. Other than the points that I have already made, for the principle of the amendment to work we would need not an addition to Clause 5—or Clause 7—but an equivalent provision to Section 86, one that referred to all the new formal notices in the Bill. There is no such provision. We have no time to provide one and no intention of doing so.

We have reached the stage at which it must be said that the amendment would not work; nor would it add anything. We need to proceed with what is, in effect, a deregulatory move on behalf of the Government, providing for greater simplicity and transparency in the process. The "minded to" process does not add anything, except delay. It would not be of particular benefit in the enforcement process.

Baroness Hanham

My Lords, I thank the Minister for his extensive reply, which will be added to the extensive replies that we have had on the matter. There is clearly some mileage between us on the value of the "minded to" procedure. I do not think that the Minister will move, and I am not minded to take the matter any further, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Category 2 hazards: powers to take enforcement action]:

[Amendment No. 2 not moved.]

Clause 10 [Consultation with fire authorities in certain cases]:

Lord Bassam of Brighton moved Amendment No. 3:

Page 8, line 23, after "fire" insert "and rescue"

The noble Lord said: My Lords, I have to be a bit careful here. On Report, I made the mistake of saying that I would move formally what I thought were rather technical amendments. The noble Baroness rightly drew me up sharp and reminded me that at least one of them did not fall into that category. That said, this large group of amendments relates to various clauses in Parts 1 to 4 and Part 7, as well as to Schedules 6, 7 and 13 to 15. All the amendments are either a response to matters raised on Report or—I can say with greater confidence—technical amendments to improve the working of the Bill.

My noble friend has written to all those who have participated in debates on the Bill, and advised them of the impact of the amendments. To save time, so that we can concentrate on more pressing issues, it is not my intention to go through each amendment. However, if a particular amendment has caught the eagle eye of the noble Baroness, the noble Lord or any other Member of the House, I shall be happy to try to take questions on it. I beg to move.

Baroness Maddock

My Lords, I am pleased to see Amendments Nos. 55 to 57, as they deal with an issue that we raised at earlier stages. We were particularly concerned that houses in multiple occupation lived in by asylum seekers came within the definition of a house in multiple occupation, due to the different process of housing them. The Government have seen that that is so, so I particularly welcome those three amendments.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 4 and 5:

Page 8, line 25, after "fire" insert "and rescue"

Page 8, leave out lines 30 to 36 and insert— "fire and rescue authority" means a fire and rescue authority under the Fire and Rescue Services Act 2004 (c. 21);

On Question, amendments agreed to.

Clause 51 [Repeal of power to improve existing enforcement procedures]:

[Amendment No. 6 not moved.]

Clause 55 [Licensing of HMOs to which this Part applies]:

Baroness Maddock moved Amendment No. 7:

Page 37, line 17, at end insert—

"( ) In exercising the power conferred by subsection (3), the appropriate national authority must ensure that the following fall within the prescribed description of HMOs for the purposes of subsection (2)(a)—

  1. (a) upon such an order coming into force, HMOs of 3 or more storeys and occupied by 5 or more persons;
  2. (b) within one year of such an order coming into force, HMOs of 3 or more storeys and occupied by 4 or more persons, and
  3. (c) within 2 years of such an order coming into force, HMOs of 3 or more storeys and occupied by 3 or more persons."

The noble Baroness said: My Lords, this is a last attempt to try to persuade the Government to move rather wider on the classes of house in multiple occupation that can be included in the mandatory licensing scheme. I certainly hope to be able to persuade Ministers that we need to ensure that all houses in multiple occupation of three storeys or more come within the mandatory licensing scheme at some stage in the near future.

The amendment proposes to phase that in, suggesting that all houses in multiple occupation of three or more storeys and five or more occupants should be subject to licensing when the Secretary of State says so and when the first regulations come into force. It also proposes three or more storeys and four occupants 12 months after that, and three storeys with two or three occupants another 12 months later. I do not intend to go into the matter in great detail, as we have had a detailed debate on it. Two or three points are probably worth reiterating.

Evidence on fire risk does not really support the threshold that the Government have put forward. The 1996 Entec report on fire risk identified that all three-storey houses in multiple occupation were high-risk, regardless of the occupancy levels. The Government have said that they are conscious of the burden that may be placed on local authorities when the new regime comes in, which is partly why they have drawn the boundaries where they have. However, Shelter carried out a survey of local authorities fairly recently, which demonstrated that there was significant support among them—particularly among environmental health officers—for a more inclusive mandatory licensing scheme. Again, I have received briefing from the Local Government Association for Third Reading. It believes that greater protection for residents would be achieved by extending the licensing to all properties, rather than only those with three storeys and five occupants.

The Government have also made the point that local authorities will have the ability to increase licensing, and that there are other provisions in the Bill. However, I am concerned that the process of applying for additional HMO licensing would be rather onerous. Extended discretionary licensing schemes are subject to the approval of the Secretary of State and limited to five years. It is not really a satisfactory answer to the problem. Yet another place where the issue was discussed was in the Select Committee on the Office of the Deputy Prime Minister, which looked at the Bill. It reviewed the evidence and concluded that, mandatory licensing should not be limited to properties of three or more storeys with five or more occupants".

I hope that I have given some help to the noble Lord, Lord Bassam, so that he can try to address this important issue. On Report, he said: The Government are aware that the risk of injury or death from fire in a three-storey HMO is higher than that in smaller HMOs". However, he argued that, the number of occupants in the house is also a factor in determining the risk of fire occurring. Conversely, the risk is diminished where a building is occupied by only two, three or four people".—[Official Report, 13/10/04; col. 300.]

We are all agreed that occupancy increases the chances of fire breaking out in the first place. However, there is no evidence that, once the fire has broken out, a tenant on the third storey of a house in multiple occupation with only three or four occupants is less likely to be injured than a tenant on the third floor of an HMO with five or six occupants. I do not know whether the Minister has any further evidence on that, and there was certainly no evidence regarding that in the Entec report.

I hope that I can persuade the Minister to assure us that he takes this matter seriously and envisages a way forward. I beg to move.

3.30 p.m.

Lord Bassam of Brighton

My Lords, I shall start where the noble Baroness finished, because the Government see this as a serious issue. From my experience as a local councillor, I would be drawn to the conclusion that there is an issue regarding concentrations of HMOs of three storeys or more. We accept that. However, the amendment essentially relates to how one could practicably best implement the legislation and examine the matter over a longer term. I understand that that might not satisfy the noble Baroness, who should be congratulated on her persistence on this important issue.

This debate has taken place three or four times during the passage of the Bill. The Liberal Democrats in particular have sought to persuade us that the threshold for licensing should be extended to include all houses in multiple occupation with three storeys or more. I accept that this amendment is different, in that it seeks phased implementation of licensing. It is not too different from the position of the Bill itself. We cannot accept the amendment for that reason.

When we debated extending the scope of mandatory licensing at Report stage, I made it clear that we would carry out a review of licensing within three years of it coming into force. The amendment would pre-empt that review. That would be unfortunate. The noble Baroness has said that there are reports and views strongly expressed by the "housing lobby" that we have not quite got this right. I said in earlier debates that we were not closed to the idea of extending the scope of mandatory licensing if that proved necessary, but we need to establish whether or not it is necessary. The noble Baroness seeks to persuade me that there is evidence that has not been adduced before. That may well be the case and I see no reason why any new evidence, reports or fresh information could not be brought forward during the review.

There is already a power to include within the scope of the mandatory licensing scheme all HMO categories listed in the amendment. If evidence is forthcoming that mandatory licensing of three-storey, five-person HMOs works, and should be extended to properties that are occupied by fewer persons or that have fewer storeys, we will do it. However, I cannot accept that the Government should be required to extend mandatory licensing to different categories, particularly if the evidence shows that there is no need to do so.

We have heard doubts in this House about whether local authorities will be able to licence all three-storey, five-person HMOs and ensure that they are all free of category 1 hazards within five years of the introduction of licensing. In those circumstances, it would be slightly odd, if not barmy, simply to extend the mandatory licensing regime with no regard to the existing system and how it is being implemented.

For that reason, it is not advisable to impose on landlords regulations that are not necessary. That could have a devastating effect on this important and, we would all agree, fragile part of the private rented sector. The noble Baroness may be unhappy at the speed with which we are trying to introduce the regime. I know that she is pleased that we have gone as far as we have. I Invite the noble Baroness to withdraw the amendment; to see the review period as being helpful; to continue to campaign for this change throughout that period, as I am sure she will; and to accept what is patently the case—that we can, if we feel the need, amend the current provision to extend the licensing regime.

The case needs to be proven that licensing should apply to all HMOs. We have powers to act, if necessary. We believe that we have the necessary flexibility and accept that at some point there may be a case to extend it—but it should be on the basis of proof and evidence, rather than a suggestion that it might be more appropriate. We have that backstop measure. I hope that the noble Baroness will withdraw the amendment.

Baroness Maddock

My Lords, I thank the Minister for his reply although I wish that he felt keener about this matter. He made various points—including the last point that there was not enough evidence. There has been much work carried out on this matter and much evidence was given to the Select Committee for the Office of the Deputy Prime Minister. If one talks to anyone involved with such issues on the ground and, particularly, students who live in such accommodation, one learns that they feel strongly about it. One of the Minister's other arguments was that he was trying to protect local authorities. Local authorities are one of the groups lobbying me on this issue. They want to be able to expand the licensing provisions. Therefore, the Minister's argument is not valid.

As is all too common these days, we are left relying on regulations that will come afterwards and on the well-meaning words of Ministers. Today the Minister did not sound that keen on the proposal. Too much would be left to chance. It is a principle for us on these Benches and for which I have been fighting since 1996 and in relation to the previous Housing Bill. I wish to test the opinion of the House.

3.37 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 111; Not-Contents, 130.

Division No. 1
Addington, L. Howe, E.
Alton of Liverpool, L. Hunt of Wirral, L.
Ampthill, L. Hurd of Westwell, L.
Anelay of St Johns, B. Inglewood, L.
Astor of Hever, L. Jopling, L.
Baker of Dorking, L. Knight of Collingtree, B.
Barker, B. Lang of Monkton, L.
Best, L. Lester of Herne Hill, L.
Biffen, L. Linklater of Butterstone, B.
Bonham-Carter of Yarnbury, B. Livsey of Talgarth, L.
Bradshaw, L. Luke, L.
Brooke of Sutton Mandeville, L. Lyell, L.
Brookeborough, V. McAlpine of West Green, L.
Buscombe, B. McColl of Dulwich, L.
Caithness, E. MacGregor of Pulham Market, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B. Mackie of Benshie, L.
Clement-Jones, L. Maclennan of Rogart, L.
Cox, B. McNally, L.
Dholakia, L. Maddock, B. [Teller]
Dixon-Smith, L. Mar, C.
D'Souza, B. Masham of Ilton, B.
Dundee, E. Mayhew of Twysden, L.
Elles, B. Methuen, L.
Elton, L. Michie of Gallanach, B.
Ezra, L. Miller of Chilthorne Domer, B.
Falkner of Margravine, B. Molyneaux of Killead, L.
Fearn, L. Monro of Langholm, L.
Finlay of Llandaff, B. Mowbray and Stourton, L.
Fookes, B. Murton of Lindisfarne, L.
Fowler, L. Neuberger, B.
Fraser of Carmyllie, L. Northover, B.
Garden, L. Palmer, L.
Goodhart, L. Perry of Southwark, B.
Hamwee, B. Peyton of Yeovil, L.
Hanham, B. Phillips of Sudbury, L.
Hanningfield, L. Platt of Writtle, B.
Hayhoe, L. Redesdale, L.
Henley, L. Rees-Mogg, L.
Higgins, L. Renton, L.
Hodgson of Astley Abbotts, L. Roberts of Conwy, L.
Holme of Cheltenham, L. Roberts of Llandudno, L.
Hooper, B. Roper, L.
Hooson, L. Sandberg, L.
Scott of Needham Market, B. Taverne, L.
Selsdon, L. Thomas of Walliswood, B.
Sharp of Guildford, B. Thomson of Monifieth, L.
Shaw of Northstead, L. Trenchard, V.
Shutt of Greetland, L. [Teller] Vallance of Tummel, L.
Smith of Clifton, L. Vinson, L.
Steinberg, L. Waddington, L.
Stern, B. Wakeham, L.
Stevens of Ludgate, L. Wallace of Saltaire, L.
Stewartby, L. Walmsley, B.
Stoddart of Swindon, L. Watson of Richmond, L.
Swinfen, L. Williams of Crosby, B.
Acton, L. Haskel, L.
Ahmed, L. Haworth, L.
Allen of Abbeydale, L. Hollis of Heigham, B.
Alli, L. Howie of Troon, L.
Amos, B. (Lord President of the Council) Hoyle, L.
Hughes of Woodside, L.
Archer of Sandwell, L. Hunt of Kings Heath, L.
Ashley of Stoke, L. Irvine of Lairg, L.
Ashton of Upholland, B. Jay of Paddington, B.
Bach, L. Jones, L.
Barnett, L. Jordan, L.
Bassam of Brighton, L. King of West Bromwich, L.
Bernstein of Craigweil, L. Kirkhill, L.
Bhattacharyya, L. Laming, L.
Billingham, B. Lea of Crondall, L.
Blackstone, B. Leitch, L.
Borrie, L. Lipsey, L.
Bragg, L. Lockwood, B.
Brooke of Alverthorpe, L. McDonagh, B.
Brookman, L. McIntosh of Haringey, L.
Brooks of Tremorfa, L. McIntosh of Hudnall, B.
Burlison, L. McKenzie of Luton, L.
Campbell-Savours, L. Marsh, L.
Carter, L. Mitchell, L.
Chorley, L. Morris of Aberavon, L.
Christopher, L. Morris of Manchester, L.
Clark of Windermere, L. Murphy, B.
Clarke of Hampstead, L. O'Neill of Bengarve, B.
Clinton-Davis, L. Parekh, L.
Craigavon,V. Patel of Blackburn, L.
Crawley, B. Paul, L.
Davies of Oldham, L. [Teller] Pendry, L.
Dixon, L. Pitkeathley, B.
Drayson, L. Plant of Highfield, L.
Dubs, L. Randall of St. Budeaux, L.
Elder, L. Rendell of Babergh, B.
Evans of Parkside, L. Richard, L.
Evans of Temple Guiting, L. Rogan, L.
Falconer of Thoroton, L. (Lord Chancellor) Rooker, L.
Rowlands, L.
Falkender, B. Royall of Blaisdon, B.
Farrington of Ribbleton, B. Sainsbury of Turville, L.
Faulkner of Worcester, L. St. John of Bletso, L.
Fitt, L. Sawyer, L.
Fyfe of Fairfield, L. Scotland of Asthal, B.
Gale, B. Sewel, L.
Gavron, L. Simon, V.
Gibson of Market Rasen, B. Slim, V.
Giddens, L. Strabolgi, L.
Goldsmith, L. Strange, B.
Gordon of Strathblane, L. Taylor of Blackburn, L.
Goudie, B. Temple-Morris, L.
Gould of Potternewton, B. Tenby, V.
Graham of Edmonton, L. Thornton, B.
Greengross, B. Tomlinson, L.
Gregson, L. Triesman, L.
Griffiths of Burry Port, L. Truscott, L.
Grocott, L. [Teller] Tunnicliffe, L.
Harris of Haringey, L. Turnberg, L.
Harrison, L. Turner of Camden, B.
Hart of Chilton, L. Wall of New Barnet, B.
Warner, L. Wilkins, B.
Weatherill, L. Williams of Elvel, L.
Wedderburn of Charlton, L. Williamson of Horton, L.
Whitaker, B. Woolmer of Leeds, L.
Whitty, L. Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.47 p.m.

Clause 64 [Grant or refusal of licence]:

Lord Rooker moved Amendment No. 8:

Page 42, line 40, leave out "may" and insert "must"

On Question, amendment agreed to.

Clause 68 [Licences: general requirements and duration]:

Lord Hanningfield moved Amendment 9:

Page 46, line 11, leave out "5 years" and insert "the designated period"

The noble Lord said: My Lords, the Bill provides that the maximum duration for an HMO licence is up to five years. During the course of the Bill, we have consistently argued for a longer period. We have brought forward this amendment to introduce an element of flexibility.

We previously suggested a maximum duration of 10 years or seven years. Indeed, at one stage, there were some encouraging noises from the Minister that he might be prepared to reconsider this provision on the basis of either a six or seven-year maximum period. This has not happened, so we are asking the Minister to reconsider.

We have refined the amendment to allow the national authority to prescribe the period and to allow different periods to be designated for different classes of HMO. There is a strong argument that the larger HMOs will need to be reviewed more regularly. Smaller HMOs, such as a three-storey house with five occupants, will need less involvement from the local authority.

It has been suggested that up to 300,000 properties will require an HMO licence. I appreciate that the Government have put forward a different figure; they have suggested the much lower figure of 120,000. Even though using the Government's estimate and allowing for available resources, a huge effort will be needed to implement the mandatory licensing of HMOs.

Landlords are concerned about the amount of fees which will have to be paid. These will, in due course, be passed on to tenants by way of increased rents. Landlords are also concerned about the amount of bureaucracy involved in the licensing scheme. Allowing for a longer duration for licences, particularly in the case of smaller licensable HMOs, will go a little way towards meeting those concerns. That can be done without in any way imperilling the system. After all, as and when properties change hands, there will be an opportunity for the situation to be reviewed.

In any case, if there are concerns, local authorities have the power to review licences and their conditions. We simply do not feel that it is necessary to revisit each and every property every five years, and we urge more flexibility to allow a longer interval, particularly in cases where it is perceived that the property is likely to be less problematic. The Bill contains sufficient safeguards to provide for any deterioration in the standard of management or accommodation in the interim, and there would therefore be no harm in allowing a longer period between full reassessments where licences are up for review.

Allowing for longer periods would reduce the amount of pressure on local authorities and give them more time to deal with problem properties. Too frequent renewals will mean that local authorities will require extra staff and resources to process what, in many cases, are routine applications for renewal. Instead, the effort could be concentrated on situations where enforcement action was appropriate. Further, landlords will have to pay fees more frequently. Therefore, I ask the Minister to reconsider and to accept that the amendment would introduce a helpful degree of flexibility on those issues. I beg to move.

Lord Bassam of Brighton

My Lords, I hope that it will help your Lordships if I refer to Amendment No. 10. I think that it should be grouped with Amendment No. 9 as they deal with the same point. In my groupings list, they appear separately.

Lord Hanningfield

My Lords, I am happy for them to be debated together as they have recently been regrouped.

Lord Bassam of Brighton

My Lords, in that case, I am happy to proceed in that way. The two amendments work together. They would remove from the Bill the maximum duration for an HMO licence of five years and replace it with provisions allowing the appropriate authority to set "the designated period" for the length of licences for different types of HMO.

The noble Lord told us that he was rather concerned that a huge effort—I think those were his words—would be involved in implementing the licensing scheme as it is. I find that a puzzling observation, given that the noble Lord and his colleagues on the Benches behind him have just trooped through the Lobby to vote for an amendment that would have increased that burden more than somewhat. Therefore, I am rather puzzled by the noble Lord's position on the issue.

My view, and that of the Government, is that the noble Lord's proposal is not a good idea because it would not take the position forward in any beneficial respect. In the past, the noble Lord has been a party to arguments for longer licences, and so I am a little surprised, if gratified, to see that these amendments would allow licences of less than five years. Therefore, there is some contradiction there.

Lord Hanningfield

My Lords, we are trying to bring some flexibility into the situation. I hope that the noble Lord will accept that we are not trying to be dogmatic about the length of time; we are trying to bring in some flexibility which we feel might help the Bill.

Lord Bassam of Brighton

My Lords, I am grateful for that explanation. In the past when I have argued for flexibility, the Opposition have often tabled amendments which would place something of a straitjacket around this issue. However, with the noble Lord's amendments, the discretion to use short licences would no longer be in the hands of local authorities.

The noble Lord is a great champion of local authorities, and I admire him on that count. I, and probably the generality of local government, think that it is right for measures to be in place that are fit for purpose. But the amendment would mean that the regime would have to be prescribed by the appropriate national authority. As we have argued repeatedly throughout the progress of the Bill, requiring central government to prescribe such implementational details—that is what it is—removes the valuable tool of flexibility on which the noble Lord is so keen from the hands of local authorities.

We continue to be unpersuaded of the benefits of the proposition to allow for licences longer than five years, which I suppose is another element to the thrust of the amendment. It would be appropriate to remind the noble Lord that the duration of five years is in itself an echo of other registration schemes with control provisions which have been put in place, agreed, and no doubt moved in the past by previous Conservative administrations and in a timeframe which no one has argued needs to be extended.

Clearly the physical condition and management of houses in multiple occupation are not static. Obviously there must be a review every so often in order to ensure that those properties are up to scratch, and an assessment will need to be made of whether a new licence should be awarded.

We think that we have pitched this matter in the right zone at five years as the maximum duration of a licence. However, it is perhaps worth reminding your Lordships that we are committed to reviewing the licensing regime within three years of its implementation. If there is a problem with the five-year period proposed in the Bill, we shall need to take account of that. No doubt, the noble Lord will persistently remind us of that if it is an emerging problem, and no doubt local government, through the LGA and other bodies, will also give the matter close inspection.

Once we have benefited from the value of the evidence on how the scheme is working on the ground, we shall be in a position to make any necessary changes to the operation of the licensing regime. It is entirely possible that at that point we shall decide that longer licences are required, but it would be wise to wait for the review.

Therefore, it would be wrong to impose a national straitjacket. That would be inflexible. I think that the noble Lord has acknowledged the kernel of the problem—that is, as he said, a huge effort is involved in implementing any scheme of HMO licensing and regulation.

The position adopted by the noble Lord on the matter is somewhat contradictory, given his earlier support for an amendment which was designed massively to expand HMO regulation in one fell swoop. We need careful implementation and a measured approach to ensure that the licensing regime works, bites and hits hard on properties where the most vulnerable households are located, where the conditions are at their worst and where properties are in urgent need of improvement. For all those reasons, I have to resist the amendment.

Lord Hanningfield

My Lords, I am disappointed by the Minister's response, given that, in another discussion that we had at a different stage of the Bill, there was some suggestion of the potential for flexibility. I should have loved to suggest giving the flexibility to local government, but I did not think that that was in any way likely to be accepted by the Minister. That is why we suggested that the flexibility should be given to the national body, as at least it would have built some flexibility into the Bill.

I accept that the noble Lord said that the duration could be changed, but there is a problem with the time that it takes to change these things. If the flexibility and the organisation are there at the beginning, people can make adjustments according to experience. If regulations or even further secondary legislation is required in order to change things, that also takes time, as we have all experienced.

I am disappointed because this is a fairly minor point. We feel that the amendment would have made life easier at the implementation of the provision and during the first few years of the scheme, given that there is disagreement about the number of properties that will be involved. If 300,000 properties are involved, it will be a mammoth task for everyone to get it going. However, I hear what has been said, and I do not think that this matter is worth pursuing now. I am disappointed that the Minister cannot accept some flexibility, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 [Offences in relation to licensing of HMOs]:

4 p.m.

[Amendment No. 10 not moved.]

Lord Hanningfield moved Amendment No. 11:

Page 49, line 16, at end insert ", and (d) in this subsection "occupy" means occupation as an only or main residence (or treatment as such in accordance with section 222) and any reference to "occupation" shall be interpreted accordingly.

The noble Lord said: My Lords, we return to this issue because we are not convinced that the explanation given by the Minister at Report stage meets the concerns which have been raised. The purpose of the amendment is to clarify the meaning of the expression "occupation". There is a definition of occupation in Clause 254(6) of the Bill. Our amendment is intended to make it clear that the offence in relation to overcrowding can be committed only where occupation is on the basis of only or main residence.

Under Clause 246(2)(c), when applying the test to decide whether a property is an HMO, the test is one of only or main residence. This is extended to include residence when someone is undertaking full-time education. The purpose of our amendment is to ensure that there is consistent treatment between the requirement for licensing and the offence which is committed where overcrowding is permitted.

On Report the Minister indicated that staying over at weekends would not suffice. Our advice is that this may not be a correct view, particularly in situations where there are regular visits. We have in mind a fairly typical situation in which a lady, who works in London throughout the week, returns to Manchester to stay with her boyfriend every weekend. She has some clothing, a toothbrush and all the usual personal possessions which stay in the flat in Manchester. Suppose the house in Manchester is a house that is licensed as an HMO with six full-time residents, including the lady's boyfriend, and all are provided with double beds. The lady stays there every weekend, but owns her own flat in London. While this may not be her only or main residence it could certainly be argued that it is a residence, as she is there on such a regular basis.

We had that kind of situation in mind when we proposed this amendment. We want to make it clear that an offence is committed only where a property is someone's only or main residence. As I say, we have not been convinced by the explanation given by the Minister. Accordingly, we propose this amendment to make the situation clearer. At the same time, an approach in this case is the same as with the test of whether a house is an HMO in the first place. I beg to move.

Lord Bassam of Brighton

My Lords, we debated this amendment at Report. At that stage, I thought we had satisfied the concerns of the noble Baroness, Lady Hanham. Evidently, we have not satisfied noble Lords opposite. This is a fairly simple matter. I want to put on record again that "occupancy" is not concerned with temporary arrangements—the boyfriend's or girlfriend's weekend scenario to which the noble Lord referred. For the offence to be committed under Clause 72 the person must knowingly permit the HMO to be occupied by more persons than the number for which it is licensed.

Clause 254 gives the meaning of the word "occupier" and related expressions as "occupies as a residence"—in other words, as a main or principal place of residence. Occasional temporary occupation by friends staying overnight does not constitute occupation for the purpose of the offence in Clause 72.

The example given by the noble Lord of someone owning and living in a flat during the week and staying with a boyfriend or girlfriend at weekends is caught in the meaning of the definition. The example given by him of visiting a property on a regular basis does not necessarily mean that the property is being occupied as a residence. In fact, the case is not a lot different from someone whose elderly parents may come to stay on a regular basis. It would not be suggested that regular visits to a property would mean that it somehow became the elderly parents' residence. Staying with someone on a temporary basis, no matter how frequently, does not constitute a residential status, unless the person has no home of his own to return to.

I should have thought that enforcement officers would have something better to do with their time than to chase people and to try to trap them into an offence of this nature in the circumstances mentioned by the noble Lord. I cannot believe that there would be much benefit to the enforcement authority in pursuing an action in those terms. I appreciate that the noble Lord is trying to clarify the point and I hope that what I have said this afternoon, and at earlier stages of the Bill, has done precisely that.

Lord Hanningfield

My Lords, we returned to this matter to try to clarify it. The Minister has set out the position for the record fairly well. I am sure that there will be several test cases. I too hope that an enforcement officer will have better things to do than to chase around in such situations. I am sure that there will be test cases so we wanted the position clarified. Although there is nothing new on the face of the Bill, what the Minister has said in reply will be on the record. We want to be quite clear that no one will try to catch those who visit people regularly on such a basis. That could include elderly parents, other relatives or all kinds of people who need support at a particular time or who just want to see their family regularly. They should not be caught up in this situation.

I hope that what has been said is enough. It is a pity that the Government will not accept the amendment, but the situation has been clearly stated and it will be on record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham moved Amendment No. 12:

Page 49, line 36, leave out "£20,000" and insert "level five on the standard scale"

The noble Baroness said: My Lords, we briefly return to a matter that we raised at previous stages. We are concerned about the extent of the reliance on criminal sanctions for non-compliance. The maximum fine for a landlord who has no licence is £20,000. In other words, that is the severest penalty that can be imposed by a magistrates' court. We have said before, and we say again, that we believe that the maximum fine for a landlord being in breach of a licence due to overcrowding should be set at level 5, rather than at £20,000, which we believe is too high a figure for an offence of this nature.

The Government have argued that as a house in multiple occupation is licensed for a specific number, it could be said that, in effect, there is no licence at all if that number were to be exceeded. Thus, it is said that the offence ought to carry the same fine as if there were no licence. That is because the house-in-multiple-occupation licensing system is not just about numbers. It looks at many other issues such as the fitness of the manager and the management arrangements. Presumably, a breach of one aspect of the licence must be less serious than in the case of a landlord who has no licence in the first place.

It is important to note that a breach of the condition of a licence attracts a level 5 fine as a maximum. It has always been our view that exceeding the permitted number should be treated in the same way. I beg to move.

Lord Bassam of Brighton

My Lords, this is the third or fourth time that I have had to rise to say this. We have had this debate several times. From the Government Benches we have made our point fairly clear. It is as simple as this: we believe that the kinds of breaches to which this penalty is to apply are very serious. These are very serious issues for the reasons that the noble Baroness has made clear. HMOs can be high-risk properties and there can be circumstances in which people are endangered by occupying them. There are fire hazards; hazards caused by deterioration of a property; poor fitness; ill-repair; and overcrowding. All those matters can lead to very dangerous premises indeed.

We take very seriously the offence of managing an unlicensed HMO, where people could be seriously injured or, as has happened in the past to the knowledge of us all, where people have died in fires and so on. It is for that reason that we have pitched the penalty at the level that we have. We have debated this matter on many occasions and we are unyielding in our belief that we need firm, effective enforcement and a hard-nosed system of penalties to ensure that people are well aware of the seriousness of breaching their obligations under this scheme.

For those reasons I am not minded to accept the amendment. To reduce the level of the fine, as suggested in the amendment, would undermine the effect of the regime. I hope that the noble Baroness will withdraw the amendment as it could have a very harmful effect.

Baroness Hanham

My Lords, I hear what the Minister has to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 [Further sanctions relating to unlicensed HMOs]:

Lord Bassam of Brighton moved Amendment No. 13:

Leave out Clause 73 and insert the following new Clause—