Localism Bill

Lord Shipley Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Shipley]

My Lords, I rise in support of the amendment of the noble Lord, Lord Whitty. Given the range of the amendments that are about to be debated, having the context to them is very important in understanding the strategic problem around housing and homelessness. We have a rising number of households. The noble Lord, Lord Whitty, is absolutely right; we should be building somewhere between 200,000 and 250,000 new homes a year to keep abreast of new household formation. We got half the figure—around 139,000—last year.

Meanwhile, the housing market is volatile. There is a rising number of mortgage repossessions. There is 1 million more people renting their homes now than were renting six years ago, largely because of the economic situation and the difficulty of getting a mortgage. There are now more people wanting to rent than there are vacancies. In some parts of the country, rents are rising much faster than inflation, reducing individual capacity to save. Disposable incomes are declining, which adds to the problem. While short tenancies might be acceptable for many single people, they are not at all good for families where continuity and security matter, or for neighbourhoods where continuity builds social cohesion.

There will be very great pressure on the rented sector over the next few years. It is crucial that we ensure the protection and rights of tenants rather than seeing everything from the perspective of supply. We are not building enough homes, which is a failure of successive Governments over many years. This situation must be addressed urgently. It is the context of my view that we need to have local housing strategies because each part of the country will be different. Unless we understand the problem that we are trying to solve, we will not have the evidence base, making housebuilding programmes, the modernisation of homes and so on more difficult to achieve in the right numbers.

[Lord Kennedy of Southwark]

My Lords, first, I thank the noble Earl, Lord Attlee, for his kind words from the Government Front Bench. They are much appreciated. The Opposition fully support the amendment in the name of my noble friend Lord Whitty. The proposal is strategic and practical. It sets up a context for the debate and other sections of the Bill. It provides both the Government and the local authority with valuable information for assisting the planning for housing need in the future. I hope that the noble Baroness will be able to accept my noble friend’s amendment. If not, I hope that she will feel able to take it away and look at it over summer, maybe in the terms referred to by the noble Lord, Lord Shutt of Greetland, in the previous amendment.

--- Later in debate ---

[Lord Shipley]

My Lords, I shall speak to a number of amendments standing in my name and those of my noble friends on these Benches, and I shall speak first to Amendments 170D and 171A. They would extend from two to five years the period in which the homeless duty on a local authority would recur, and provide for a household accepted as homeless to receive reasonable preference on the local authority’s allocation scheme during the five years, arising from the household’s need for stable housing. Without these amendments some very vulnerable people could face increased vulnerability.

The Government’s housing White Paper last November confirmed their commitment to tackling homelessness and protecting the most vulnerable in society, and confirmed their belief that social housing should continue to be prioritised for the most vulnerable, given that this could be the only way that they would gain access to a secure home. These are people who may have been in care, had a mental illness or disability, been a member of the Armed Forces, or served a custodial sentence. Groups such as these need security and support to set up and manage a home successfully. It is difficult to see why an acceptance that such people are priority homeless should now be so constrained.

The impact of changes to local housing allowance means that households dependent on full or partial housing benefit will be pushed into the cheaper part of the private rented sector without any reasonable preference for a permanent and affordable home. I believe and would suggest that the Government should stick to their commitment in their housing White Paper that the existing reasonable preferences categories should remain unchanged to ensure that social housing is clearly focused on those who need it most. Local authority duties cannot simply be discharged by offering a single short-term contract with a private landlord.

Amendment 171ZA provides a framework for the exercise of the right of review that is presently enjoyed by applicants for social housing. The present statutory scheme for allocation of social housing and the re-cast scheme proposed in Clause 128 contain provisions enabling applicants to seek reviews of adverse decisions on their applications. The problem is that the current Act and the new clause are silent as to the procedure to be followed if an applicant exercises those rights. Our amendment suggests that a fair mechanism for resolving reviews would be as laid out, and essentially replicates the procedural rights enjoyed by homeless applicants who seek reviews of homelessness decisions under the Housing Act 1996. The amendment also reflects basic good practice that some local authorities have already incorporated into their local schemes. The need for structure to be applied to review procedures was recognised by the Government many years ago, and I understand that an ODPM letter to local authorities sent on 11 November 2002 promised further guidance. That guidance is still to arrive and the amendment in my name makes good that omission.

Amendments 171D and 172A restore the requirement that a final offer of accommodation under the homelessness duty must be reasonable for the applicant to accept. In fact, these amendments to Clause 129 simply restore the law to its current position. At present, Section 193(7)(f) of the Housing Act 1996 provides that a housing authority shall not make a final offer of accommodation, including approving an offer of private sector accommodation, to a homeless applicant,

“unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer”.

The requirement that it is reasonable to accept the offer has been removed by Clause 129(9) for no obvious reason and this amendment would restore that condition. A recent case in the Court of Appeal considered that while a flat may have qualified as suitable in terms of size and location, the council concerned should have gone on to consider the wider question of whether it was reasonable for the family to accept it, ruling that “suitability” and “reasonable to accept” are overlapping but different concepts.

This piece of legislation is very important where there are aspects of accommodation, or more likely the surrounding environment, that would not prevent the accommodation itself being objectively considered as suitable but would have a detrimental affect on the applicant. Examples could include the risks of racial harassment or violence by individuals unknown to the applicant, or a risk to the welfare of the applicant where the accommodation offered is in a neighbourhood associated with drug use or dealing and where the applicant is a recovering drug addict. It could include the perceived risk of harassment or violence by individuals known to the applicant, such as a violent ex-partner whose relatives, friends or associates live in the neighbourhood. I hope my amendment is seen as a sensible way forward—to restore the law simply to its current position. It is about making it clear in the Bill what process should be followed.

Amendment 173ZB would create a statutory duty on local authorities to record all approaches they receive from people in housing need, including those who apply for social housing, those who express an interest in applying, those who are considered to be homeless by the local authority and those who consider themselves to be homeless. Requiring local authorities to collect data on all housing or homelessness approaches that they receive would provide a clearer picture of the genuine level of housing need that exists in a local authority area. Such data are essential to inform the localised planning system and the local tenancy strategies introduced by the Localism Bill, particularly as restrictions on social housing waiting lists could reduce the extent to which these lists can provide an indication of housing need.

Amendment 173AA seeks to define the suitability of accommodation secured under homelessness duties; it should be affordable and take into account such matters as distance of the accommodation from employment opportunities, any disruption to the education of children and young persons, the risk to the applicant of isolation, the level of support available to the applicant in the district, such as closeness of families and friends, the availability of medical treatment where appropriate and any caring responsibilities of the applicant in relation to another person.

If local housing authorities are able to discharge their main duty with potentially one offer of private rented accommodation, it becomes much more important that this offer is suitable for the needs of the household. At Third Reading, the Minister, Andrew Stunell, said that he recognised there are some concerns and that he was prepared to consider further the need for additional protections for homeless households placed in the private sector. It is very welcome and I would be pleased to see the Government come forward with concrete proposals to deliver that objective.

It is a question of getting this on to the face of the Bill. At Second Reading, my noble friend the Minister stated that the accommodation crucially must be suitable, which covers a wide gamut of issues including affordability, size, condition, accessibility and location. We need that on the face of the Bill.

Amendment 173ZC is about a household being deemed to be in priority need but intentionally homeless. In this case, the authority must provide not only advice and assistance but suitable accommodation for a period that will give the householders a reasonable chance of finding accommodation for themselves. Amendments 173ZE and 173ZF are self-explanatory, I hope. They relate to extending the period to five years to enable reapplication after a private sector offer and enable people to maintain the right to an offer for a longer period.

Amendment 1738B relates to the Homelessness Code of Guidance 2006, which states at paragraph 8.32:

“where a person applies for accommodation or assistance in obtaining accommodation, and:

(a) the person is an assured shorthold tenant who has received proper notice in accordance with s21 of the Housing Act 1988;

(b) the housing authority is satisfied that the landlord intends to seek possession; and

(c) there would be no defence to an application for a possession order; then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s21 notice”.

There is a major issue here, because the Secretary of State plainly considers that, ordinarily, a tenant in such circumstances—that is, one who has been properly served by a Section 21 notice—should be accepted as homeless by the local housing authority. The problem is that local housing authorities rarely do so, but will accept an application only at the point of eviction, thus causing anxiety to the tenant and his or her family, which could be avoided, and needless incurring of costs.

I realise that I have tabled a number of amendments. I would be very happy for the Minister to consider us talking further about some of these issues over the summer, but they are all exceedingly important in protecting the rights of tenants.

[Lord Rix]

My Lords, I speak to Amendments 171 to 173, which are scattered among other amendments in the group. Amendment 171 is concerned with the allocation of housing. Mencap, of which I am president, hears stories on a daily basis from parents of learning-disabled offspring about how difficult it is to find a suitable home for their son or daughter. That is why many people with a learning disability continue to live with their parents, often into late adult life. Mencap's report some years ago, The Housing Timebomb, highlighted that about 29,000 adults with a learning disability still live with parents who are over 70.

Although the “reasonable preference” groups—which guide local authorities and their decisions as to who should be housed as a priority—highlight the people who need to move on medical and welfare grounds, including disability, people with a learning disability still struggle to be regarded as in urgent need of housing. At that point, living with parents puts them in the position of being in “settled accommodation” and therefore less of a priority in terms of both homelessness and medical reasons.

To resolve that problem, my amendment is aimed to change the “reasonable preference” categories so that anyone who has an assessed housing need in the context of a community care assessment should be included in the “reasonable preference” groups. That would make it clearer to local housing departments that housing need, in the context of someone with a learning disability, has to be seen in a broader sense than is currently the case, and help to improve this unhappy situation.

Amendments 172 and 173 concern the ways in which local authorities discharge the homelessness duty. The Bill proposes that people can be placed in the private rented sector without due regard to the wishes of the homeless applicants themselves. Currently, a homeless applicant can reject an offer by the local authority to move into private rented sector accommodation. My amendment would introduce appropriate safeguards so that if an individual were placed in private rented accommodation, their needs would be properly addressed.

There are many reasons why people may not consider accommodation offers in the private rented sector to be suitable, including insecurity of tenure and, of course, cost. If the provision is enacted, strict safeguards should be in place to ensure that the accommodation which disabled and older people are offered, and have to accept, is appropriate, affordable and provides some security of tenure. That is why Amendment 173 proposes to increase the minimum period of such a tenancy from just 12 months to 60. This will provide the security of tenure that is so important to many people with a learning disability and their parents.

I am also encouraged by the Government’s comments during Report in the House of Commons, in which it was outlined that they would,

“consider further the need for additional protections for homeless households placed in the private rented sector”.

Ministers also said that they would be,

“prepared to consider using those powers for the provision of additional protections on standards of accommodation or other matters”. —[Official Report, Commons, 18/5/11; col. 408.]

I look forward to hearing from the Minister whether the Government have had any further thoughts on this, including the possibility of introducing a national accreditation scheme.

--- Later in debate ---

[Lord Shipley]

My Lords, I shall speak to Amendments 173CE and 173E. I should say that a gremlin has got into the system, and Amendment 173CF is incorrect. I beg permission not to speak to it because it is a mistake.

The purpose of Amendment 173CE is to enable a person to whom the offer of a flexible tenancy is made to request a review of the landlord’s decision as to the length of the term of the tenancy, thus eliminating the restriction that no review can be requested if the offer is within the landlord’s policy as to the length of the term of such tenancies. I shall give an example to explain the problem. A tenant or prospective tenant may want to request a longer period which is permitted by the policy but which has not been offered on the basis of the initial assessment by the local authority before the offer. The longer period being sought could be because of long-term specialised medical treatment needed for a member of the household or to avoid disruption of the education of a child with particular needs. There could be a difference between the authority’s initial assessment of the time required for the tenancy and the tenant’s assessment of the time leading to the need for a review. I do not understand why a local housing authority should not consider representations in relation to the length of a flexible tenancy in a particular case. It would be to the advantage of a tenant or prospective tenant that it should be able to undertake a review.

Amendment 173E is about creating a presumption that flexible tenancies should be renewed on expiry unless good reasons are shown to the contrary. As the legislation stands, the process tenants will have to undergo when their flexible tenancies come to the end of the fixed term is weighted almost entirely in favour of the landlord. The amendment would hope to ensure that, when this process is being undertaken, there is greater protection for tenants, many of whom will be particularly vulnerable toward the end of their tenancy. This could be achieved by requiring a landlord to justify refusing to extend the tenancy rather than expecting the tenant to undergo a potentially complicated reapplication process. This would be preferable, as many tenants might be unaware of what factors are relevant to the authority’s decision and might find it difficult to successfully advocate for renewal of a tenancy or struggle to provide proof of need.

We also need to guard against bureaucratic failure. Bureaucratic failings already cause a great deal of hardship for people on low incomes, such as when mistakes occur in determining housing benefit claims or when registered providers fail to issue an assured tenancy following a successful probation period. No one should face the loss of their home as a result of bureaucratic failing. This amendment would help to prevent this happening. There is also the question of landlord accountability. This amendment would help to improve accountability, as landlords would have to demonstrate greater objectivity and transparency before taking possession of a tenant’s home. The removal of security of tenure will result in a great deal more uncertainty for tenants, as they will become aware of the looming threat of losing their homes toward the end of their fixed-term tenancy. While a presumption in favour of renewal would not remove this huge worry, it would at least ensure that tenants are on a more secure footing and hope to ensure that landlords undertake a thorough process when reviewing tenancies.

In committee in the other place, the Minister Andrew Stunell, said that we expect landlords to discuss housing options with tenants well before the fixed term of their tenancy comes to an end. That we would expect the tenancy to be renewed in many cases needs to be underlined. For those reasons, it is important that this expectation in terms of presumption of renewal of tenancy is written into the Bill. Social housing is for many people the best means of ensuring security and a long-term stable home. For some, it is the first step in enabling them to improve their circumstances. Having people living in a neighbourhood for long periods can build community cohesion and social capital. The amendment will simply help to maintain people in their homes.

[Baroness Doocey]

Speaking to Amendments 173CA and 173CB, I turn to Amendment 173CA. The purpose of this amendment is to increase the minimum length of flexible tenancies in social housing. With a diminishing stock of social housing under increasing pressure, the Government see greater flexibility of tenancies as a better way of managing social housing stock. The amendment would increase the minimum length of a flexible tenancy from two to seven years. It does not oppose the principle of flexibility. Rather, it is an attempt to reconcile the advantages of flexibility with the need of tenants for a reasonable degree of security and stability.

In theory, the Bill would give local authorities and housing associations the flexibility to be able to offer tenancies of varying length in order to best manage their stock. They could still offer inflexible tenancies if they chose; the length of a flexible tenancy could be as short as two years, although we know that the Government believe that a two-year tenancy would be the exception. However, in practice, there is a risk that local authorities and housing associations could make two years the norm. If two years become widespread or commonplace, it would undermine household housing stability.

Until now, social housing has been stable; it is often the first stable accommodation that many vulnerable people have ever experienced. If this stability were lost, it would remove a key benefit of social housing for such people. It would significantly weaken the sustainability of communities. Two years is too short because it would lead to a higher turnover of residents on estates, with the associated problems of poor community cohesion. If we want to achieve mixed communities and well-functioning neighbourhoods, it is important that people—including those in work and with good prospects—are able to put down roots in an area and feel a sense of ownership. Extending the minimum to seven years is not a panacea but it would go some way towards mitigating the problems caused by flexible tenancies.

A two-year limit could act as a serious disincentive to work since tenants would fear that if they find employment and increase their earnings, they might no longer be able to renew their tenancy. A seven-year limit would lessen this fear since finding employment would not have an immediate impact on their tenancy.

The purpose of Amendment 173CB is to ensure that people moving on from one secure tenancy are offered another. At present, tenants in the social rented sector enjoy secure tenancies of unlimited duration. The change to a flexible scheme would apply to new tenants but not existing ones. Leaving aside any objections to flexibility per se, the Bill as drafted includes an ambiguity. It is clear that an existing secure tenant will not have his or her tenancy agreement torn up or amended. It is also clear that a new tenant may be subject to a limited-term tenancy. However, the Bill is unclear on what happens if an existing secure tenant moves to a different property. Therefore, it does not guarantee their security.

The Government are putting measures in place to make it easier for social tenants to transfer to a new property that will better meet their needs, such as the introduction of the national affordable home swap scheme. At the same time, the Government intend to cut housing benefit for social tenants who are underoccupying; that is, those living in a house with more bedrooms than they are deemed to need. Many of the people affected by this cut will move to smaller accommodation, but only if that accommodation is available. The Government are right to encourage an increase in social housing transfers because everyone wins. It will be good for existing tenants who can move to more suitable housing, the homeless because it will free up larger houses and social landlords because they can better allocate their housing stock. However, if the Bill leads to existing secure tenants being granted only flexible tenancies simply because they have made the choice to move to a new property, the effect will be that many, if not most, such tenants will decide to stay put.