Non-Domestic Rating (Public Lavatories) Bill

Baroness Pinnock Excerpts

Report stage & Lords Hansard
Wednesday 17th March 2021 Lords Chamber

[Lord Greaves (LD)]

My Lords, I shall speak also to Amendment 2, which is in the same group. This follows what I thought was an interesting and useful discussion in Committee on the meaning of the words “wholly or mainly” when it came to defining whether a hereditament qualified for the zero rating under business rates as a public lavatory. In Committee I probed whether “mainly” was about the area it covered, perhaps the floor area, the value or the use. The Minister made it very clear that it was about the use; I have been reading what he said in Committee and that is very clear indeed. I will come back to that because Amendment 1 is the more important of these two amendments.

Amendment 2 is about the percentage use of the hereditament that qualifies for non-payment of any business rates. In Committee the Minister made it clear that the words “wholly or mainly” were put in because, he said, they are commonly used words in this kind of legislation, particularly in relation to charities. He referred to case law and to local authorities having some flexibility in whether they decide it is a public hereditament. He said:

“The use of ‘mainly’ means that an authority may, for example, look at the floor area of a building and see that less than 50% is being used directly as a public lavatory, but it may still feel that it meets the criteria … because the remaining area is used as storage or for other matters of little consequence.”—[Official Report, 24/2/21; col. 852.]


The useful discussion that we had there again put the emphasis upon the use of the hereditament. The Minister went on to refer to the Local Government Finance Act 1988 and its reference to charities.

The interesting thing is that it is not entirely clear that 50% is absolutely clear and written into the legislation. The Minister kept saying that he did not want greater burdens to be put on local authorities and did not want them to spend more time on this, yet there seems to be some disagreement, in the context of business rates relating to use for charitable purposes, about whether the proportion of the use that is taking place has to be 50% or more. The Charity Tax Group says in its briefing:

“In order to benefit from the mandatory exemption from business rates it is important to understand the meaning of ‘wholly or mainly used for charitable purposes’. Case law suggests that ‘mainly’ probably means ‘more than half’; but there is a certain amount of ambiguity about this and the interpretation may vary from local authority to local authority”


which is unsatisfactory.

“It is sometimes argued that ‘mainly’ in fact means more than 75 per cent. Charities may have to try to negotiate this with their local authority.”


I am no expert on this area and I do not know how much of that goes on, but it seems sensible that if “mainly” means 50% or more that ought to be written into the Bill.

Amendment 1 would put into the legislation the exact words in the charitable legislation and the exact words that the Minister said in Committee referred to this legislation. I looked it up. Section 45A(2)(b) of the Local Government Finance Act 1988 reads, for charitable relief,

“it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes.”

There is then another paragraph that refers to community amateur sports clubs that has the same wording.

I am therefore trying, in an attempt to be really helpful to the Government, which I always attempt to do in legislation because if we get good legislation it is clear what it means and it is workable, to put into the Bill the wording in the Local Government Finance Act, which in Committee the Minister said applied to this Bill, which is to say that it is not, as this Bill states at the moment

“consists wholly or mainly of”,

but

“is used wholly or mainly”

for public lavatory purposes.

This is a very sensible little amendment. The Government ought to say, “Yes, of course. It’s sensible. Let’s put it in.” I beg to move.

[Baroness Pinnock (LD) [V]]

My Lords, I draw the House’s attention to my interests in the register as a member of Kirklees Council and as a vice-president of the Local Government Association. I must say that I enjoyed the forensic probing that my noble friend Lord Greaves has undertaken. The words in the Bill that he is keen to clarify are ones that legislators frequently use. One wonders whether this is for the precise purpose of storing up business for lawyers when a challenge is made and the words then have to be to defined. My noble friend has done his research and quoted case law. The Minister’s response will be of interest to many of us because it will relate not only to this Bill but to others where charitable institutions are involved.

My noble friend also drew our attention to the difference in the use of “consists” and “used”. As he rightly pointed out, a “well used” facility may not get relief, whereas one that consists “wholly or mainly” may well do. Perhaps the Minister will be able to explain the reasoning behind the use of the words in the Bill that my noble friend is questioning. I look forward to what I am sure will be a most informative response.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I declare my interest as a vice-president of the Local Government Association. I thank the noble Lord, Lord Greaves, for tabling the amendment. We debated issues around similar words in Committee. I thank him for raising these important matters again because we have to be clear. I was very struck by the points he made towards the end of his remarks about how important it is to get legislation right and to have good legislation. If we are not clear what we mean and mean what we say we will have all sorts of problems.

This gives the noble Lord, Lord Greenhalgh, the opportunity to be very clear about what the Government mean. We need to be clear when we have words such as “mainly” and whether it is “more” or “less”. If we do not get these things clear then we get confusion. That leads to bad law and might potentially involve the courts. It potentially involves wasting more time in this House clarifying what we should have clarified in the first place.

The noble Lord, Lord Greaves, is very good at picking these things up. I remember the debate that we had on rogue landlords, when he tabled an amendment on what was meant by the word “rogue”. It is important that we get these things right because then we will not need to clarify them. I thank the noble Lord for that. I look forward to the Minister’s response on the amendment.

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[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn from this group, so I call Baroness Pinnock.

[Baroness Pinnock (LD) [V]]

My Lords, my noble friend Lady Randerson has a wealth of knowledge of the value and importance to our communities, large and small, of the provision of clean, well-maintained public toilets. Her argument is a powerful one. We learned from the meeting that we had with the representatives of the British Toilet Association and the Minister that, in fact, there is no longer accurate mapping of open public toilets around the country. During these 12 months of Covid closures, public toilets have been shut out of concern that their use might enable virus transmission. As the country seeks to return to a more normal way of life, what is vital is that public toilets are available in every community. All noble Lords who have spoken so far have made that point. That is why I totally agree with my noble friend that this Bill lacks ambition and what is needed is a strategy for public toilets from a public health perspective.

I have a suggestion for the Minister. The Government are allocating funding via a Towns Fund to help regeneration. Perhaps he can urge his department to attach a requirement to successful grant applications that towns ensure, as a minimum, that they have a well-maintained and accessible public toilet for the disabled.

My noble friend Lord Greaves pointed out how important parish and town councils are in maintaining existing public toilets. He also pointed out the difficulty that those councils have in accessing capital money in order to restore or build new facilities. That, too, is something to which I hope the Minister will respond.

The noble Baroness, Lady Andrews, urges us, as a society, to recognise the essential need for decent public loos, and that their provision is in crisis. I agree wholeheartedly when she says, “If Wales can do it, so can England.” It was well said.

My noble friend Lady Thomas speaks with long experience of the barriers that are unwittingly created for disabled people by the rest of the community. There has been a failure to provide public toilets that are both available and accessible. If we all had to plan our days out shopping or visiting on the basis of the availability of an accessible toilet, my hunch is that many more would soon be provided.

I thank the noble Baroness, Lady Greengross, for pursuing a similar amendment and for supporting the purpose the amendments in the names of my noble friends. Of course, we on this side totally support this Bill. It will have some limited impact that might well ensure that some public toilets remain open. Unfortunately, it fails to address the wider issues of comprehensive provision and the role of government in encouraging and supporting the funding of such facilities. Hence, I fully support all the amendments in this group. Perhaps the Minister can provide some hope that the Government will return to the lack of provision of public toilets in future legislation. Better still, they could use the current funding regime to make their provision a priority for grants. I hope that the Minister will be able to offer some evidence that the Government take the matter seriously, and I look forward to his response.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 3 in the name of the noble Baroness, Lady Randerson, is a good amendment and I support it. I look forward to the Minister’s response. The noble Baroness is absolutely right to highlight these issues. An ageing population needs more facilities; parents need facilities for their children. The point the noble Baroness made about changing facilities for fathers and male guardians is very well made. We also need to ensure that proper facilities are provided for disabled people, so I very much agree with the noble Baroness on that.

The noble Lord, Lord Greaves, spoke to an amendment to the lead amendment. He was absolutely right in talking about people visiting town centres, beaches and so on. We are all looking forward to the lifting of lockdown over the next few months. The Government are going to say, “Get out there. Go out there and spend some money, visit some places and meet your family and friends”. I want to do that.

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[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Earl, Lord Lytton, has withdrawn, so I call the noble Baroness, Lady Pinnock.

[Baroness Pinnock (LD) [V]]

My Lords, I shall follow the previous two speakers in keeping my comments brief. That is not because the amendment does not have merit—on the contrary, it does—but because a lot of the issues it raises have been discussed in full earlier. The noble Lord, Lord Kennedy is right to pursue the extent of rate relief provision. There is an anomaly in restricting relief to standalone public toilets. We heard from the Minister during the debate in Committee that it would be difficult to achieve rate relief for public toilets in public buildings for reasons of complexity for the Valuation Office.

I appreciate those challenges in the administration of such a change, but where there is a will, there is a way. If rate relief were granted for public toilets within public buildings, it might just be the sort of relatively minor additional support that kept the toilets, the building and the facility provided there open. That would be a triple benefit.

What concerns me is that the Government are less than willing to find a way to enable more public toilets to remain open by extending rate relief. I understand that that is difficult—but let us hope that the Minister will be able to have a good think about it and come up with an answer. Maybe the report provision in the amendment offers a way forward; perhaps he will be able to agree to accept that part of it. Whatever happens, we have had a good debate on an important issue concerning public health and public facilities that is of concern to many people. I thank all noble Lords for their contributions, and I hope the Government are listening. I know the Minister has been listening.

[Lord Greenhalgh (Con)]

My Lords, I am conscious that everybody has kept their remarks relatively brief, so I am busily trying to pare down my speech in response to the noble Lord, Lord Kennedy.

I appreciated the point made by the noble Lord, Lord Greaves, about the importance of town and parish councils in providing public toilets, and the fact that they have facilities that would benefit from, for instance, the Changing Places scheme. Because of the points that he has raised this evening, it is important for me to say that we will be looking at including in the guidance and the prospectus a call for councils at all levels to work together to think about provision, which I hope will help to ensure that town and parish councils are more involved than they otherwise would be. I thank the noble Lord for raising that point.

I also thank the noble Lord, Lord Kennedy, for tabling the amendment, which is similar to those previously discussed. I realise that his intention is to understand the difference this legislation has made, and I assure him that the Government keep under review the effectiveness of all business rates reliefs.

Nevertheless, as I set out earlier, the ability to keep a public lavatory open depends on a number of factors, and I do not think it would be possible to separate out the impact that this relief has had from the other aspects which determine local toilet provision. In addition, the amendment would require a report to consider whether the scope of the relief should be extended. I recognise that this is an issue in which many noble Lords are interested, so I am grateful to the noble Lord, Lord Kennedy, for the opportunity to set out why the Government have designed the scope of the Bill as we have.

Subject to Royal Assent, this Bill will deliver a 100% business rates relief for properties that consist wholly or mainly of public toilets in England and Wales. The relief has been deliberately designed to benefit those toilets for which removing the cost of business rates will make the greatest difference to the operators’ ability to keep the facilities open, and stem the decline that we have seen over many decades in public toilet provision.

Officials from my department regularly engage with the Valuation Office Agency and the Local Government Association ahead of the introduction of any business rates measures. Depending on the way in which the scope of the relief was extended, it might be necessary for an additional valuation exercise to be carried out by the VOA. I understand that the VOA has advised that such an exercise could require the assessment of hundreds of thousands of properties, at an estimated cost of around £90 to £120 per property. The total cost of carrying out an additional valuation exercise would therefore be significant, and would be disproportionate to the potential benefits to ratepayers of expanding the scope of the relief.

A different approach to extending the scope of the relief could reduce the burden on the Valuation Office Agency but instead require local authorities to identify qualifying hereditaments. On the basis of conversations with the LGA, my department considers that this would be likely to create additional administrative burdens and costs for councils, which would have to go beyond simply using the existing “public conveniences” category on rating lists, and would have to make decisions on a case-by-case basis.

The noble Lord, Lord Kennedy, suggested in Committee that most qualifying ratepayers would self-identify, therefore reducing the burden on local authorities. I agree that this could be the case, but some element of scrutiny would still be likely to be required on the part of each council to identify fraudulent or spurious claims, so the creation of administration and oversight would remain unavoidable.

While the Government set the legislation which informs the structure of the business rates system, the burden of implementing a relief of this sort and the process of ensuring that it is operationally sound fall to local councils and the Valuation Office Agency.

In the case of this relief, the Government consider that this balance has been met in the Bill as currently drafted. By ensuring that the criteria for the relief reflect a pre-existing category on rating lists, we have found a happy medium between ensuring that the measure delivers value for money and is straightforward for local authorities to implement, while providing targeted support for those facilities for which removing business rates costs will make the greatest difference.

It would be extremely difficult to isolate the changes this measure has had on increasing the number of toilets and changing places facilities from wider factors. Nor do I agree that it would be a good measure of the impact of the relief. However, I can assure the House that we will continue to keep all reliefs under review and, together with my colleagues in the Treasury, to listen to representations on how to improve the business rates system. I hope that, on this basis—and on the basis of the points made earlier this evening—the noble Lord, Lord Kennedy, will agree to withdraw his amendment.