Homelessness Bill

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Mr. Foster: I am grateful to the hon. Gentleman for giving me the opportunity to tell him why he is wrong. If a local authority had to provide accommodation in all cases, undoubtedly a large number of people who did not have a leg to stand on would request an appeal for exactly the reason that I described earlier, which is at least to ensure that temporary accommodation was provided to them for the period of the review process. I am sure that the hon. Gentleman made a slip of the tongue when he referred to the appeals process, because we have already sorted that out—at least to my satisfaction. We are now dealing with the review process, not the appeals process.

Mr. Clifton-Brown: We are discussing an appeal against the provisions of the review process. If the hon. Member for Bath had read the further qualifications under section 204(4), he would know that paragraph (a) refers to

    ``during the period for appealing under this section'',

while paragraph (b) states:

    ``if an appeal is brought, until the appeal (and any further appeal) is finally determined.''

In other words, my suggestion of amending the word ``may'' to ``must'' would have applied only when an applicant appealed, which is surely the whole thrust of section 204 of the 1996 Act. It deals with a situation in which an applicant appeals against a decision by the local authority on review under sections 188, 189 and 200. [Interruption.] The hon. Member for Bath is quibbling again. Perhaps he would like to tell me where I am wrong.

Mr. Foster: There are two stages, the first of which is a review process that is carried out internally; there is then an appeals process, which is an opportunity for a second bite at the cherry. We could, of course, use confusing terminology and say that an appeal is being made against the review, but that would involve us in the appeals process. In the first case, the person is saying that he is not happy with the decision that was made and is asking that the case be reviewed. It is that particular stage to which I refer.

Mr. Clifton-Brown: I think that we are both arguing about the same thing: the powers to be used when, in an applicant's opinion, the local authority has failed to review the case properly. The applicant has the power to take the matter on a point of law to the county court on appeal. We are discussing the duty of the local authority and whether it should house that applicant during an appeal to the county court.

That is what we are arguing about.

Mr. Foster: No.

Mr. Clifton-Brown: Well, that is what the Act says.

Mr. Foster: The hon. Gentleman constantly refers to the 1996 Act. I suggest that he looks at the clause that we are debating, clause 11, which already significantly amends section 204 of that Act. Section 188, a few pages earlier in the 1996 legislation, should also be amended.

Mr. Clifton-Brown: I have already referred to sections 188, 189 and 200. The hon. Member for Bath is just trying to ensure that if the local authority fails to review properly in accordance with those sections and an applicant decides to appeal to the county court, the local authority will have the right to re-house.

Mr. Foster: No.

Mr. Clifton-Brown: Well, that is my understanding. If I am wrong, no doubt the Minister will tell me. The hon. Member for Bath's amendment is otiose and unnecessary. It is a wrongly worded way of achieving something that could be brought about much more simply.

The clause amends section 204 of the 1996 Act, but with highly complicated wording. I had to read it about three times before I understood it—and I am not sure that I fully understood it even then. New section 204(4) will be added to the original section 204. Subsection (3) states that an appeal may not be brought until

    ``after the final determination by the county court of the main appeal.''

I wonder whether the drafters are in a muddle. They seem to be saying that the main appeal on a point of law has to take place before the subsidiary appeal against detailed aspects of failing properly to operate previous clauses and the review.

Subsection (6) states:

    ``An order under subsection (5) . . . may only be made if the court is satisfied that failure to exercise the section 204(4) power in accordance with the order would substantially prejudice the applicant's ability to pursue the main appeal.''

An element of tautology is discernible here. We have already been told under subsection (3) that the final appeal must be brought before the substance appeal, but in subsection (6) it seems to be the other way round.

Mr. David Kidney (Stafford): I have just listened to the hon. Gentleman's account of what subsection (3) says, but it sounded different from the wording in the Bill. He said that the appeal could not be brought ``until'' after the final determination of the main appeal, but it does not say ``until''. Until he realises that, what he said is meaningless.

Mr. Clifton-Brown: I accept that. Let me read out subsection (3) for the total avoidance of doubt:

    ``An appeal under this section may not be brought after the final determination by the county court of the main appeal.''

In other words, the main appeal has to be heard before the substance appeal. If I am wrong, the Minister will tell me. If I am wrong on subsection (3), I presume that there is no contradiction with subsection (6). Is that what the hon. Gentleman is saying?

Mr. Kidney: It does not matter. When the appeal has been dealt with by the county court, that is it. Time is up.

Mr. Clifton-Brown: We are talking about two appeals: one on a point of law and one on a point of substance. The question is which comes first. The wording of this complicated section 204A is not clear. The Minister may tell me that it is quite clear, but speaking as a layman, I do not believe that it is. Will the Minister explain the procedure in clear, simple English? I shall sit down and allow the Minister to explain it.

The Parliamentary Under-Secretary of State for Transport, Local Government and the Regions (Dr. Alan Whitehead): I shall attempt to do what the hon. Member for Cotswold (Mr. Clifton-Brown) asks of me before I proceed with clause 11 and the amendment proposed by the hon. Member for Bath.

I have a little chart that shows that the court may require the local authority to accommodate only if the court has already quashed the local authority's decision not to accommodate and is satisfied that, if the applicant were not accommodated, that would substantially prejudice his ability to proceed. They are not consequent but parallel actions. As the hon. Member for Cotswold said, the county court's determination of the main appeal deals with whether a person should be accommodated while an appeal is taking place. Therefore, what he presents as an apparent sequence of events is in fact not a sequence but a series of parallel developments that ensure not only that the person must have succeeded to some extent in establishing the problem of accommodation, but that the failure to provide accommodation would prejudice the person's ability to continue with the action. The hon. Member for Cotswold is incorrect. I hope that that elucidates a complex issue.

On clause 11 and new clause 2, I note the predilection of the hon. Member for Bath for postcards. It is a triumph of consensual democracy that a Bill that was apparently entirely written by Opposition Members and introduced by a Labour Government may be going on the statute books. If they could agree who had written what, our cup would run over.

Before I turn to the new clause, I shall explain in some detail the purpose and effect of clause 11. Homeless applicants have the right to appeal to the county court on a point of law about decisions made by the local housing authority that relate to their homelessness application. That right applies when applicants have asked the authority to review a decision that, for example, they do not fall within a priority need group and are dissatisfied with the authority's decision on review, or if the authority has failed to provide a decision in the required period.

Authorities may at their discretion continue to secure accommodation for an applicant pending an application to the county court and must take into account the circumstances of each case in deciding whether to exercise that power. Currently, if an applicant wants to challenge an authority's decision not to exercise its power to continue to accommodate, he or she must ask for a judicial review of that decision by the High Court. The High Court has the power to quash the decision if it is unlawful and may require the authority to accommodate the applicant until the application for judicial review can be heard.

Clause 11 inserts a new section, 204A, into the Housing Act 1996, and gives the county court powers that are broadly equivalent to current High Court powers to consider decisions made by the housing authority not to accommodate pending an appeal to the county court on a point of law. Therefore, in future, the county court will be able to deal with all aspects of appeals that relate to homelessness decisions and co-ordinate the appeal on the substantive homelessness decision, together with any application to consider the authority's decision not to continue to accommodate.

Proposed new section 204A(2) gives applicants the right to appeal to the county court against an authority's decision that results in their not being accommodated for the full period until the final determination of their appeal against the substantive homelessness decision, which I shall refer to as ``the main appeal''. Proposed new section 204A(3) provides that such appeals cannot be brought after the final determination of the main appeal on the homelessness decision, as I said in response to the hon. Member for Cotswold.

6.30 pm

Proposed new section 204A(4) gives the county court new powers, to which the hon. Member for Bath referred. The court may require the authority to accommodate the applicant for a period before the court hears the appeal against the authority's decision not to accommodate. The court must confirm or quash the decision of the authority that is being appealed against. In considering which to do, it must apply the principles of judicial review that are used in the High Court. If the county court quashes the authority's decision, new section 204A(5) gives the court the power to require the housing authority to accommodate the applicant for a period specified by the court, subject to certain conditions.

The conditions are set out in new section 204A(6). First, the court can require the authority to accommodate only if the court is satisfied that a failure to do so would

    ``substantially prejudice the applicant's ability to pursue the main appeal''.

Secondly, an authority cannot be required to continue to accommodate an applicant after their main appeal has been finally determined. Those are the two parallel points that I mentioned earlier.

Clause 11 will provide new rights for homeless applicants and new powers for the county court that will enable the court to deal with all aspects of appeals against a local housing authority's decision on a homelessness case, including any decision not to continue to accommodate the applicant pending the appeal.

Let me respond to the other point made by the hon. Member for Cotswold by saying that, as far as I can see, the substitution of the word ``must'' for ``may'' would mean that, instead of the local authority having discretion subject to appeal, that discretion would go and the local authority would have to accommodate and therefore go down an entirely different route from the one that I have set out. Far from that change simplifying matters, it would bring in an entirely new meaning.

I admire the construction of the new clause tabled by the hon. Member for Bath, which has a certain familiarity. He may have hit on a device that could save millions of pounds by taking templates for legislation and dropping new words into them. That could be a productive way to construct our legislation in future. It could lead to mass unemployment, but it might be useful.

Clause 11 gives the county court the power to intervene in decisions by housing authorities not to exercise their discretion to continue to accommodate an applicant pending an appeal to the county court under section 204 of the 1996 Act. New clause 2 would give the county court similar powers to intervene in decisions by an authority not to continue to accommodate pending a review by the authority of its decision on the homelessness case. I can see the attraction of the symmetry of provision that the new clause seems to offer when taken with clause 11. However, as with so much in life, the issues are not simple or clear-cut. The two instances are not equivalent, although the hon. Gentleman sought to convince the Committee that they are.

A fundamental point is that the homelessness legislation makes clear distinctions between those who have a priority need and those who do not, and between those who have become homeless through no fault of their own and those who, through their own action or inaction, have brought homelessness on themselves. That reflects reality. It is essential to ensure that vulnerable groups—such as those with dependent children and those who are less able than others to look after themselves—have somewhere suitable to live, but it is not practical or reasonable for local housing authorities to have to arrange accommodation for everyone every time that they face having to find a new home.

Since its inception in 1977, the homelessness legislation has given housing authorities an immediate duty to secure accommodation for new applicants where there is reason to believe that they are homeless and in priority need—until the authority has had a chance to look into their circumstances and satisfy itself whether they are indeed homeless, whether that was caused by the applicants and whether there is priority need. That interim duty is imposed by section 188 of the 1996 Act.

It is right that authorities should have that obligation and that applicants should have the right to ask the authority to review any decision—for example, that they do not have a priority need or that they became homeless intentionally—that goes against their interests. It is also right that authorities should have the discretion to continue to accommodate applicants during a review where there is good reason to do so.

Case law, particularly the London Borough of Camden v. Mohammed in the High Court in 1997, has established that authorities must balance the objective of maintaining fairness for homeless persons where it has been decided that no duty is owed to the applicant, and the possibility that the applicant may be right and that depriving them of accommodation may deny them something to which they are entitled. The court also set out clear criteria that authorities must consider when deciding whether to exercise their discretion to continue to accommodate an applicant after the interim duty under section 188 has ended.

It is appropriate that discretion as to whether applicants should continue to be accommodated once the authority has completed its detailed inquiries and satisfied itself of the facts of the case should rest with the authority. In the Court of Appeal in the case of Ali v. City of Westminster and Nairne v. London Borough of Camden, which concerned an application for judicial review of a decision by an authority not to exercise its discretion to continue to accommodate, Lord Justice Otton said:

    ``Local authorities are well used to dealing with these type of cases. They know the circumstances of the applicants, and the range and availability of accommodation in their area. They have policies in place to guide them in exercising their discretion. It is a matter of common sense that such decisions should remain within their ambit, and not the courts.''

Of course, there needs to be an avenue of redress for applicants in the event that an authority does not make a proper and reasonable decision—for example, by failing to give due consideration to all circumstances, or perhaps failing to consider them at all. Currently, that route is an application for a judicial review of the authority's decision by the High Court. The hon. Member for Bath may jump to his feet at this point, and insist that that mechanism is too remote and inaccessible for the average homeless applicant. Like the hon. Gentleman, and no doubt all other members of the Committee, I believe in the importance of the principle of access to justice. However, I also believe that it is important that the discretion of housing authorities is not undermined. There is an inherent tension.

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