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Lord Dixon-Smith: I am grateful for that suggestion. I shall consider that point but I seek to avoid unnecessary litigation altogether. That is the issue here. However, for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 53:



"( ) that where an injunction under section 153A or 153B has already been granted, its terms have been breached or, where no such injunction has been obtained, it was not an appropriate or available remedy to the landlord,"

The noble Baroness said: In moving Amendment No. 53, I wish to speak not only to Amendment No. 54, with which it is grouped, but also to Amendments Nos. 58 and 60, with which it is not grouped. I hope that I may speak to all four amendments. The Minister, the noble Lord, Lord Dixon-Smith, and I have exchanged notes on the matter. The amendments concern similar issues.

Amendments Nos. 53 and 58 seek to ensure that the powers in the Bill to demote tenancies are used only as a last resort. I understand that in some quarters it is thought that injunctions are difficult to obtain. That is not the case. I suggest in the amendment that a landlord should have good reasons for not using the injunction procedure in the initial stages of responding to anti-social behaviour. The amendments provide a staged approach so that, in line with what I understand to be the Government's policy intentions, demotion is used only in exceptional cases when other measures for addressing the behaviour have failed. The objective is to prevent unnecessary homelessness.

Amendments Nos. 54 and 60 are designed to give the court discretion to include the provision of support and rehabilitation as part of the conditions of a demotion order. The Government have said that the purpose of demoted tenancies is to give tenants a last chance to address and change their behaviour. The Committee has acknowledged that support, rehabilitation and prevention—which is not the issue here—are particularly important. The amendments are drafted to allow a court to require either the landlord himself to provide support or to secure it from another agency. Nothing in the amendment would prevent a court granting demotion without support where it considered that that would not be either necessary or appropriate. I beg to move.

Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Hamwee, for speaking to those separate groups of amendments following our exchange of notes. That helps the discussion on demotion orders. I shall deal with the relevant four amendments in turn.

Amendment No. 53 seeks to prevent the court granting a demotion order if an injunction is in place which has not been breached or if the landlord has failed to apply for an injunction in appropriate circumstances. This would limit the discretion of the

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landlord to choose between two effective remedies for anti-social behaviour and would prevent the landlord from using a "mix and match" approach.

Demotion and injunctions are intended to be free-standing options which the social landlord would be able to use separately or in combination depending on what was most appropriate in the circumstances. It may often be a good idea for landlords to seek injunctions before taking other action. However, in cases of low level, persistent anti-social behaviour, a demotion order may be more appropriate than an injunction. I am sure that the noble Baroness accepts that. It would not be helpful if the power to obtain demotions were restricted in that way.

Amendment No. 54 links too closely for us the provision of support with the demotion order. As we discussed earlier, it is good practice that landlords should offer appropriate support to those affected by anti-social behaviour, as well as those who perpetrate it. As well as giving the tenant and landlord the opportunity for rehabilitation work, the demotion order is an attractive proposition to landlords in that it ensures swift action if behaviour is not addressed.

Tying any support to the order may lead to unforeseen complexities. For example, if the landlord did not have a complete support package in place at the time of seeking an order, would the courts refuse that order? That is quite a big question. If the landlord had not provided the support in the method stated in the demotion order, could that be a reason for the tenant to challenge any subsequent eviction action? I invite the noble Baroness to give some thought and consideration to those points.

Amendment No. 58 would prevent the court granting a demotion order if an injunction were in place which had not been breached or if the landlord had failed to apply for an injunction in the appropriate circumstances. As I have already made plain, that limits the discretion of the landlord to choose between two effective remedies for anti-social behaviour. So far as we are concerned, Amendment No. 60 again links too closely the provision of support with the demotion order and raises the problems to which I referred earlier.

I will not say that we see the beauty of the demotion order as being something that falls mid-way between injunction and eviction—two options available in the circumstances with which we are concerned. We see the demotion order offering a lot more. It is a more finely tuned and appropriate option for the landlord—one that we think will be found particularly attractive. It offers encouragement and some important loss of rights.

We understand the seriousness of that, but the demotion order provides the opportunity for the offender, to use that term, to think about his behaviour and modify it. It enables him to have a dialogue with management and, if appropriate, with the person suffering from the anti-social behaviour, to work out a solution and to regain and recover his rights over time. We understand that that is widely supported and popular, and we do not want to inhibit the use of demotion orders as the amendments could.

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I realise that the issue is considered serious, not least by the noble Baroness. I am grateful to her for tabling the amendments as it has enabled us to explain some of our thinking behind the important improvements to the legislation.

5.45 p.m.

Baroness Hamwee: I thank the Minister for the response on Amendments Nos. 53 and 58, on which he said that the landlord's action could be limited. I shall look at their drafting again. On Amendments Nos. 54 and 60, one of his concerns was that a tenant might be able to challenge a demotion order if the landlord did not have a support package in place and did not fulfil those conditions. The amendments were not intended to be other than discretionary—they state that the order "may contain conditions"—so I had hoped that that outcome would have been avoided by the drafting. However, I will of course look at all he said, as well as at whether the words have the outcome that he suggests. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]

Lord Dixon-Smith moved Amendment No. 55:


    Page 13, line 46, at end insert—


"(e) any other express terms of the secure tenancy"

The noble Lord said: The amendment is grouped with Amendment No. 56. One introduces words to the Bill and the other deletes words from it, and I can see the Minister winding up his reply by saying that what I want to introduce merely states what is in the words that I seek to remove. That is not the case. The words that I seek to introduce to the Bill on the demoted tenancy agreement are,


    "any other express terms of the secure tenancy".

In other words, apart from the fact that the tenancy is demoted, together with the period of the demotion and the rent and so forth, the former terms of the secured tenancy are transferred into the demoted tenancy.

That is not what is stated in lines 4 to 6 on page 14 of the Bill. The Bill states:


    "If the landlord of the demoted tenancy serves on the tenant a statement of any other express terms of the secure tenancy which are to apply to the demoted tenancy such terms are also terms of the demoted tenancy".

That implies quite clearly that some of the terms of the protected tenancy might well be removed from the tenancy agreement of the demoted tenant. We do not think that that is reasonable. It seems to me that the demotion itself, the loss of security of tenure, should be sufficient punishment, without having the tenancy agreement fiddled with as to which clauses in the original agreement should remain in the demotion.

Unless the Minister can provide a solid justification as to why the landlord should be allowed to "wriggle" with the clauses of the secure tenancy on the arrival of demotion, my amendments should hold good. It was

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concern about that specific issue that led me to table them. They are an important little matter in their way. I beg to move.

Lord Avebury: In replying, will the noble Lord say whether the terms of the secure tenancy which are transferred in accordance with the provisions in subsection (7) would have to be submitted to the county court? Has the landlord an absolute discretion to decide which terms of the secure tenancy he will re-impose? Or does that have to be approved by some other authority?

Lord Bassam of Brighton: The purpose of Amendments Nos. 55 and 56, as the noble Lord, Lord Dixon-Smith, explained, is to remove the procedure whereby a landlord may impose specified express terms of the tenancy preceding the demoted tenancy on a demoted tenant by service of a notice of terms and replace it with a system whereby all express terms of a secure tenancy are automatically carried over to a demoted tenancy. The amendment as drafted would apply only to secure tenancies, and it does not establish the equivalent changes to assured registered social landlord tenancies.

The amendment would cause considerable legal problems. Some secure tenancies have terms relating to security or associated rights, such as rights to additional compensation for repairs. We do not want these to be automatically reintroduced into a demoted tenancy. If demotion is to act as a sanction, landlords should be able to choose whether or not to give these additional rights to demoted tenants. The amendment potentially has the effect of impacting upon that important penalty.

It is not the case that if no notice of terms is served then the tenancy has no terms. Paragraphs (a) to (d) of Clause 14(5) set out the basic conditions under which the tenancy will operate. Landlords may then apply any other express terms of the original secure or assured tenancy that they consider to be right. I hope that that answers the noble Lord's point.

In response to the point raised by the noble Lord, Lord Avebury, no, the county court does not have to approve it; and, yes, the landlord does have discretion to choose which terms it seeks to put into a demoted tenancy. The noble Lord will probably not like those responses, but they answer the questions that he raised.


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