Homes Bill

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Mr. Waterson: I shall be brief. I do not think that the hon. Member for Bath could be accused of taking short cuts in his speech. He usefully dealt with the points from the Shelter briefing, and, no doubt, one or two others. We share some of his concerns and our starred amendments Nos. 103 and 104 have a similar thrust to some of his proposals.

It is a matter of principle that, whatever detailed system is put in place for social housing allocation policies, it must be transparent. Applicants should be clear about whether they are eligible for housing, for what type and in what area; how to apply for it; how priority is awarded; and how to appeal or seek a review if they are not satisfied. They must also be clear about the information that they are entitled to receive during the process.

As the hon. Member for Bath said, we are discussing the 1996 Act. Section 164 gives the right to a review of an authority's decision to exclude a person from the housing register. Section 204 gives an applicant the right of appeal to the county court on a point of law if the review finds against him. Section 202 allows a right of review of an authority's decision under the homelessness provisions.

We are not the only people who are concerned. At the meeting of the all-party homelessness and housing group to discuss the Bill on 15 January, Mr. Chris Holmes, the director of Shelter, described the removal of the right of appeal as a ``cause for concern''. We share that concern. Shelter eloquently set out its concerns in its briefing, and the hon. Member for Bath has, perhaps less eloquently, taken us through that.

I refer again to the LGA report ``No Place Like Home''. It says that

    ``The key criterion for allocation schemes is the need for a transparent and fair system in which applicants are kept fully informed and which ensures sufficient flexibility at local level in order to balance the needs and rights of both the individual and the local community.''

We agree with that as a principle, and do not see how the part that relates to the right of the individual can be maintained by removing the right of appeal and review. We therefore support the amendment and new clauses proposed by the hon. Member for Bath.

Mr. Raynsford: The amendment and new clauses relate to appeals against decisions by a local housing authority about an applicant's eligibility for housing accommodation, and to duties owed to the applicant by the authority. The issues are complex and I will address each in detail.

I first make some general points. It is difficult to achieve the balance between securing robust rights to review and ensuring that review arrangements do not become too unwieldy, protracted and costly. We want a framework that allows unsound or borderline decisions to be reconsidered effectively but does not provide perverse incentives to request reviews that have little prospect of success. That is not easy—there are no perfect solutions.

I am reluctant to accept amendments that would force authorities to continue to secure accommodation for those seeking reviews of decisions. It is right that local authorities should have the discretion to make such arrangements, but they should use that discretion reasonably.

Amendment No. 75 would enable an applicant whom the local authority had found to be ineligible for allocation of housing accommodation to request a review of that decision. New clause 5 would empower the Secretary of State to specify by order the procedure to be undertaken in such a review.

The purpose of clause 25 is to establish eligibility for allocation of housing accommodation. The broad principle—discussed in the previous debate—is that all are eligible except certain persons subject to immigration control and persons within a class prescribed by regulations made by the Secretary of State. Those exceptions correspond with those in section 161 of the Housing Act 1996, which apply to qualification for the housing register. However, unlike the ``qualifying persons'' provision of that section, new section 160A gives local housing authorities no discretion to determine classes of eligible or ineligible persons. That is an important point.

A local housing authority will have to decide, first, whether an applicant comes within the statutory exclusion in new section 160A(3)—that is, whether he or she is subject to immigration control—and, if so, whether he or she falls within any of the exceptions to that prescribed by regulations made under the same subsection. For example, current exceptions include persons who have indefinite or exceptional leave to remain in the UK, as the hon. Member for Bath pointed out.

Secondly, the authority must decide whether a person who does not fall within the terms of 160A(3)—that is, he or she is not subject to immigration control—falls within another class of ineligible person prescribed by regulations made under new section 160A(5). Those dealt with under the equivalent current regulations, made under section 161(3) of the 1996 Act, are applicants not habitually resident in the common travel area—the UK, the Channel Islands, the Isle of Man and the Republic of Ireland.

An authority will have to apply the provision made in primary or secondary legislation to the facts of each case. Authorities do such things every day across the range of their functions. If an applicant were to contact an authority and show that relevant facts might have been misunderstood or that a wrong decision might have been reached for some other reason, I hope and expect that the authority would have another look at the case—effectively, review it. That is good administration and we shall say more about it in guidance.

If an authority failed to do that or, having looked at it again, did not change its view, it would be open to the applicant to bring judicial review proceedings if he could show that the authority had misdirected itself by taking wrong factors into account, failing to take account of relevant ones, or contravening the well-known principles of administrative law. That is the general remedy for such cases. We have not yet reached the point where local authority decision making is subject across the board to statutory review procedures laid down by central Government. I suspect that most hon. Members would not want us to.

Mr. Don Foster: The Minister is beginning to acknowledge that judicial review is hardly an option for most people, for some of the reasons that I gave. Given that he said that he would hope and expect a local authority, when challenged, in effect to review a case, and that the Housing Act 1996 provides for review, why is he now seeking to remove that provision, given that it is what he wants to happen?

Mr. Raynsford: The hon. Gentleman is not following my argument, or perhaps I have not expressed it clearly. Unlike the 1996 Act, the Bill offers no scope for a local authority to apply blanket exclusions that it determines itself. There is no such discretion for the local authority, as there was under the 1996 Act. That was, properly, subject to a review. Under the exclusions to which I have been referring, the local authority has to apply the law in relation to the facts of each case. If it does so correctly, it would be preposterous for someone to seek a review of such a decision. I am afraid that the arrangements that the hon. Gentleman proposes would encourage such reviews.

Mr. Foster: What would happen in the case of the Turkish person I described earlier? Although complicated, the legislation makes it clear that an asylum seeker from Turkey is eligible. If the local authority did not understand that, made a mistake and deemed that person to be ineligible, what course of action would be available to that individual to take the matter forward? The Minister's answer is judicial review. Is that the case?

Mr. Raynsford: Like me, the hon. Gentleman must have dealt with many applicants who question whether their local authority has correctly interpreted the law, not on an area of discretion but on the application of a point of law. I normally advise people to seek legal advice from a solicitor if they have the means to do so. If not, they should go to a law centre, which will give free advice. I have good relations with my law centre and no doubt the hon. Gentleman does with similar organisations in Bath. That normally produces a short, sharp letter to the authority reminding it of the legal position, which leads rapidly to a reversal of the decision.

That is very different from a request for a review of an area where the local authority has the discretion to take a decision. The problem with applying a review procedure to an area where the authority is correctly applying the law is that one is encouraging people who are ineligible because of the law to seek a review of something that cannot be reviewed. That would create a cumbersome, expensive and time-consuming appeal procedure for no good purpose, as I tried to explain earlier.

Where the finding of ineligibility on statutory grounds is clearly correct, I see no reason to provide a mechanism allowing an appeal against that decision. Under the new provisions, unlike section 161 of the Housing Act 1996, we are not concerned with local authorities applying their own policy discretion with respect to exclusion from allocation. Rather than go down the road proposed by the hon. Gentleman, I think it best to rely on authorities to follow the principle of good administration, with the possibility of judicial review if they get it wrong and ignore the letter from the law centre, to which I have just referred.

New clause 6 seeks to amend the provisions on the right of appeal to a county court on a point of law under section 204 of the 1996 Act. It would allow for an extension of the appeal period, which is currently 21 days. It would place an obligation on authorities to continue to secure accommodation for an applicant, under sections 188, 190 and 200 of the Act, during the period in which an appeal could be lodged and during the hearing of any appeal.

The current 21-day period for an applicant to decide whether to appeal is not unreasonable, and it provides authorities with some assurance that decisions will be made in timely fashion. Nor am I persuaded that the discretionary power that authorities currently have to continue to secure accommodation for applicants who appeal against adverse provisions is inappropriate. A similar proposal is made in new clause 11.

6.45 pm

New clause 11 would, in some cases, have the effect of placing a duty on authorities to secure accommodation for an applicant to whom they have concluded that they either did not owe a duty or owed one of the lesser duties. It would affect applicants who request a review of the authority's decision on their case where the authority is not reasonably certain that its decision will be upheld by the review.

Authorities already have the power to continue to secure accommodation for an applicant pending a decision on a review, and I would expect an authority to use that power if it had doubts about what decision might be reached. However, the amendment would deprive authorities of their right to exercise discretion, and that goes too far. Authorities should take care when making judgments, and I would not expect them to reach manifestly unbalanced conclusions, but it would be unreasonable to limit an authority's right to exercise discretion and replace it with the precise test that is proposed by the hon. Gentleman. To do that would also encourage more appeals against authorities' decisions and have resource implications for authorities, which might result, in some cases, in the perverse consequence of applicants with lesser needs securing accommodation ahead of those with greater needs.

As ever, it is essential to get the balance right. The new clause pushes the test too far against the efforts of reasonable authorities to make fair and balanced judgments. I therefore ask the hon. Gentleman to withdraw the amendment.

 
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