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(d) in this subsection "occupy" means occupation as an only or main residence (or treatment as such in accordance with section 222) and any reference to "occupation" shall be interpreted accordingly."
The noble Lord said: My Lords, we return to this issue because we are not convinced that the explanation given by the Minister at Report stage meets the concerns which have been raised. The purpose of the amendment is to clarify the meaning of the expression "occupation". There is a definition of occupation in Clause 254(6) of the Bill. Our amendment is intended to make it clear that the offence in relation to overcrowding can be committed only where occupation is on the basis of only or main residence.
Under Clause 246(2)(c), when applying the test to decide whether a property is an HMO, the test is one of only or main residence. This is extended to include residence when someone is undertaking full-time
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education. The purpose of our amendment is to ensure that there is consistent treatment between the requirement for licensing and the offence which is committed where overcrowding is permitted.
On Report the Minister indicated that staying over at weekends would not suffice. Our advice is that this may not be a correct view, particularly in situations where there are regular visits. We have in mind a fairly typical situation in which a lady, who works in London throughout the week, returns to Manchester to stay with her boyfriend every weekend. She has some clothing, a toothbrush and all the usual personal possessions which stay in the flat in Manchester. Suppose the house in Manchester is a house that is licensed as an HMO with six full-time residents, including the lady's boyfriend, and all are provided with double beds. The lady stays there every weekend, but owns her own flat in London. While this may not be her only or main residence it could certainly be argued that it is a residence, as she is there on such a regular basis.
We had that kind of situation in mind when we proposed this amendment. We want to make it clear that an offence is committed only where a property is someone's only or main residence. As I say, we have not been convinced by the explanation given by the Minister. Accordingly, we propose this amendment to make the situation clearer. At the same time, an approach in this case is the same as with the test of whether a house is an HMO in the first place. I beg to move.
Lord Bassam of Brighton: My Lords, we debated this amendment at Report. At that stage, I thought we had satisfied the concerns of the noble Baroness, Lady Hanham. Evidently, we have not satisfied noble Lords opposite. This is a fairly simple matter. I want to put on record again that "occupancy" is not concerned with temporary arrangementsthe boyfriend's or girlfriend's weekend scenario to which the noble Lord referred. For the offence to be committed under Clause 72 the person must knowingly permit the HMO to be occupied by more persons than the number for which it is licensed.
Clause 254 gives the meaning of the word "occupier" and related expressions as "occupies as a residence"in other words, as a main or principal place of residence. Occasional temporary occupation by friends staying overnight does not constitute occupation for the purpose of the offence in Clause 72.
The example given by the noble Lord of someone owning and living in a flat during the week and staying with a boyfriend or girlfriend at weekends is caught in the meaning of the definition. The example given by him of visiting a property on a regular basis does not necessarily mean that the property is being occupied as a residence. In fact, the case is not a lot different from someone whose elderly parents may come to stay on a regular basis. It would not be suggested that regular visits to a property would mean that it somehow became the elderly parents' residence. Staying with
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someone on a temporary basis, no matter how frequently, does not constitute a residential status, unless the person has no home of his own to return to.
I should have thought that enforcement officers would have something better to do with their time than to chase people and to try to trap them into an offence of this nature in the circumstances mentioned by the noble Lord. I cannot believe that there would be much benefit to the enforcement authority in pursuing an action in those terms. I appreciate that the noble Lord is trying to clarify the point and I hope that what I have said this afternoon, and at earlier stages of the Bill, has done precisely that.
Lord Hanningfield: My Lords, we returned to this matter to try to clarify it. The Minister has set out the position for the record fairly well. I am sure that there will be several test cases. I too hope that an enforcement officer will have better things to do than to chase around in such situations. I am sure that there will be test cases so we wanted the position clarified. Although there is nothing new on the face of the Bill, what the Minister has said in reply will be on the record. We want to be quite clear that no one will try to catch those who visit people regularly on such a basis. That could include elderly parents, other relatives or all kinds of people who need support at a particular time or who just want to see their family regularly. They should not be caught up in this situation.
I hope that what has been said is enough. It is a pity that the Government will not accept the amendment, but the situation has been clearly stated and it will be on record. I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, we briefly return to a matter that we raised at previous stages. We are concerned about the extent of the reliance on criminal sanctions for non-compliance. The maximum fine for a landlord who has no licence is £20,000. In other words, that is the severest penalty that can be imposed by a magistrates' court. We have said before, and we say again, that we believe that the maximum fine for a landlord being in breach of a licence due to overcrowding should be set at level 5, rather than at £20,000, which we believe is too high a figure for an offence of this nature.
The Government have argued that as a house in multiple occupation is licensed for a specific number, it could be said that, in effect, there is no licence at all if that number were to be exceeded. Thus, it is said that the offence ought to carry the same fine as if there were no licence. That is because the house-in-multiple- occupation licensing system is not just about numbers. It looks at many other issues such as the fitness of the manager and the management arrangements.
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Presumably, a breach of one aspect of the licence must be less serious than in the case of a landlord who has no licence in the first place.
It is important to note that a breach of the condition of a licence attracts a level 5 fine as a maximum. It has always been our view that exceeding the permitted number should be treated in the same way. I beg to move.
Lord Bassam of Brighton: My Lords, this is the third or fourth time that I have had to rise to say this. We have had this debate several times. From the Government Benches we have made our point fairly clear. It is as simple as this: we believe that the kinds of breaches to which this penalty is to apply are very serious. These are very serious issues for the reasons that the noble Baroness has made clear. HMOs can be high-risk properties and there can be circumstances in which people are endangered by occupying them. There are fire hazards; hazards caused by deterioration of a property; poor fitness; ill-repair; and overcrowding. All those matters can lead to very dangerous premises indeed.
We take very seriously the offence of managing an unlicensed HMO, where people could be seriously injured or, as has happened in the past to the knowledge of us all, where people have died in fires and so on. It is for that reason that we have pitched the penalty at the level that we have. We have debated this matter on many occasions and we are unyielding in our belief that we need firm, effective enforcement and a hard-nosed system of penalties to ensure that people are well aware of the seriousness of breaching their obligations under this scheme.
For those reasons I am not minded to accept the amendment. To reduce the level of the fine, as suggested in the amendment, would undermine the effect of the regime. I hope that the noble Baroness will withdraw the amendment as it could have a very harmful effect.
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