HOUSING LAW PRACTITIONERS’ ASSOCIATION

Minutes of meeting held on 15 May 2002

Abbey Community Association

1. The Law Commission's Paper "Renting Homes"2. Allocations and Homelessness

Chair: David Watkinson, 2 Garden Court Chambers

Speakers: Professor Martin Partington, Law Commissioner

John Gallagher, Solicitor, ShelterLiz Davies, Barrister, 2 Garden Court Chambers

Chair: This evening we have three speakers. The main business of the meeting on the advertised programme is Allocations and Homelessness and the speakers will be John Gallagher and Liz Davies. That will be particularly concentrating on the new provisions of the Homelessness Act. However, before that I am very pleased to welcome to the meeting Martin Partington, Law Commissioner, who has been steering through the Law Commission’s Consultation Paper recently published on Renting Homes, Status and Security. This is probably going to lead to the most significant piece of legislation relating to Security since the first Rent Act in 1915 so it certainly is something worth this meeting being informed about. Martin will speak to us for about 25 minutes or so outlining the recommendations in the Consultation Paper and the thinking behind it and we will then take some questions before moving on to the next business of the meeting. What I ought to do just before we do that is to ask if there are any corrections to the Minutes of the previous meeting? That was the Annual General Meeting followed by the talk on Human Rights and Housing by Jan Luba. Thank you, then I will invite Martin to speak.

1. The Law Commission's Paper "Renting Homes"

Martin Partington, Law Commissioner: The first thing I should say is to thank HLPA and the Executive very much indeed for inviting me to come and offer this presentation. The Law Commission is from time to time criticised for its failure to be adequately pro-active in terms of getting out and discussing with the community in the broadest sense its proposals. But we are certainly taking a very pro-active stance in relation to this housing Consultation Paper because after all if we do achieve what we hope, namely a reform of housing legislation affecting the rented sector, the lives of nearly a third of the population of this country will be affected. And we think, therefore, that it is not unimportant that we discuss this as widely as possible. Just to set the context, the Paper that has already been published is sub-titled Status and Security. There will be a further Paper on the right to succession and a number of other rights that we are broadly embracing under the term transmission which will be published later this summer. Our terms of reference for this project indicate that we are also going to do some work on unlawful eviction and harassment. But that work has not been approved for funding or for resourcing yet but we hope that that will come on stream, subject to Ministerial approval within the DTLR. And of course, we have as our own long-term objective, this is not stated Government policy but is certainly an objective of the Law Commission, the idea that there should be a code of housing law which would be, we hope, comprehensible not only to practitioners but also to the landlords and occupiers affected by the rules.

I thought it might be helpful just to say a word about the Law Commission and the way it goes about its work. Because although I suspect all of you, or at least I hope all of you, are broadly familiar with the existence of the Law Commission, it may well be that there are those of you who, like myself before I started working at the Law Commission, are somewhat vaguer about the process and the procedures that we go through. The first and obvious point to make is that we are a statutory body and we have statutory tasks. To simplify and modernise the law, crudely. We have one of these rather British relationships with

Government. We clearly, at every conceivable stage, particularly when we are discussing with civil servants and Ministers, assert our independence from Government. But I think it is only realistic to say that the work that we do, if it is completely removed from any area of interest within Government, is unlikely to achieve any practical outcomes. And were we to do that consistently, I think people might ask questions about the value of the Law Commission. We are wholly funded by the Lord Chancellor’s Department and the type of work that we do which goes into our programme can broadly be defined into two categories. Projects which are bits of work which are generated, or ideas for projects that are generated, from within the Law Commission and references, which is work which is referred to us by others, in particular Government Departments. The housing project is the result of a reference and not a project. We have been asked to do this by the DTLR together with the Lord Chancellor’s Department. This has the advantage that it brings additional resource into the Commission to enable us to hire the staff, to put the team in place that is going to do the work. Whether it is a project or a reference, each piece of work that we do has a set of terms of reference and I think, therefore, it is always important to bear in mind what those terms of reference are. Because, inevitably, they shape and set limits to the projects and the reports that we prepare.

One of the issues that has affected us very much in relation to housing is that there is, I think, a tension between if you like our statutory function which is primarily that of law reform and broader issues of the development of housing policy, social policy in general. We would say and we would assert quite clearly that we are a law reform agency, not a housing policy agency. But it does not require much intelligence to see that insofar as one is trying to do one’s law reform tasks, the simplification and modification, if you accept that the current law is confused, then therefore the present position has got to be changed. Change means making choices as to which way we go and to some extent, therefore, law reform must shape policy insofar as we are making those changes. But I think it is important to stress that there are limits, as it were, which we are very conscious of in relation to the degree in which we can get involved in policy. And this is particularly difficult, I think, in the context of housing. If you look back over the history of housing legislation, I think arguably it is a bit like a sort of Hundred Years War. A Labour Government comes in rather like the French and they charge across the plain and the Conservatives come in and they charge back. And there is a sort of yo-yoing effect and each time the warring armies pass another layer of housing legislation gets added. If you do not like my historical analogy you might try an archaeological one where you are digging through the thing and depending upon which bit of the core you bring out you can say ‘ah yes, that was 1947 or it was 1946’. So that, historically at any rate, housing has been so intimately bound up in party politics that it is quite a challenge for the Law Commission to develop its programme which has got to be on a non-party political basis. But I think it is important to stress that that is the context. And of course, when Nick Raynsford asked us to do this work, this is in the context of the present Government in effect deciding that the broad structure of legislation put in place during the 1980s and early 1990s would remain broadly similar. So our proposals are, therefore, designed to evolve from the situation created, if you like, by the 1985, the 1988 and the 1996 Housing Acts. The limits that this imposes is that, for example, I know that there are people who argue that you will never have a decent housing law without some generalised right to housing. That simply cannot be on our agenda however much you might like it to be. It is not part of the Law Commission’s function to argue for that. The policy implications of that in our judgement would be just outside the scope of what we could do. Similarly I have heard people saying that the only way forward is, for example, to re-introduce rent regulations but again that is an issue that to us is a key policy issue, it is not a law reform issue that we could take on board. We are, therefore, constrained to work within the current legal framework, but what we hope is that within that framework we have produced a new approach to the regulation of the housing market which will be clearer and more straightforward and simpler. In other words, it will meet the statutory terms of reference that we have been given.

In the consultation process itself there is a bit of code which is perhaps worth stressing in relation to the way we write our reports. Experience at the Law Commission is that if you write a proposal or a consultation paper which says ‘what do you think about the general idea of, I don’t know, tinkering around with possession proceedings’ you will tend to get a lot of response back which says ‘well, we don’t quite know what you mean’ and so on and so forth. In other words, generalised questions thrown out at random into the atmosphere tend to get very flabby and rather unhelpful answers. So the art form of the Law Commission is very much to offer provisional proposals in order to provoke people to respond to those proposals. Some proposals people will think are good, some proposals people will think are bad but we want to provoke those responses. Where we ourselves are genuinely uncertain as to the way forward, the code language is ‘we invite views’. So those of you who have looked through our document, particularly

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the final chapter which brings all the provisional recommendations and the invitations for views together, the difference between provisional proposals and invitation for views is not a stylistic thing that somebody got bored writing ‘we provisionally propose’. It is sending a message to the consultation community that we have got to a different stage in our thinking. But having said all that, the whole point of the Law Commission is that we want to develop proposals for law reform that are part of an intellectual, argued debate so that our consultation proposals are precisely that. They are proposals for consultation; they are not like a Government Green Paper or a Government White Paper where the proposals are, if not set in concrete, set in something beginning to shape up pretty firmly. We often change our minds in the light of the representations made to us. I think one of the great disservices that we have in public life in this country is the idea that a U-turn is a bad thing. To me a U-turn is an extremely good thing because it shows that people have engaged in a debate and in the light of that debate have changed their minds. So we are setting out for consideration our provisional proposals and our invitation for views. All those responses will be considered fully and taken into account. Of course, where the issues are highly contested, and there are some issues in our project that we know are going to be very highly contested, the fact that one person says ‘we want something’ does not mean to say that the Law Commission is going to be able to roll over straight away and say ‘yes, we agree with that’ because the argument will come the other way. But we want to be able to come to a conclusion in the light of a careful analysis of a full range of responses rather than simply making it up as one goes along or on the basis of inadequate discussion. And as David says, I do think that this is an opportunity for a measured think about the structure of housing law as it affects the rented sector which, historically, has not been possible because it has all been tied up in the short term party political battles that have been going on.

We have a section on making the case for simplification. We consider what the causes of complexity are and to a large extent I have mentioned those. It is the fact that whenever you get a change to the system, the existing law tends to remain in place so you get layer upon layer. There has also been a great tendency for politicians to want to make special cases so that a lot of the complexity of the current law is because there is a lot of detail which applies to specific situations. So our broad strategy has been to try, so far as we can, to achieve a simplification by limiting the number of special cases that need to be dealt with in a separate way. And also, and we think this would be the big prize, to develop a scheme on to which existing schemes could be mapped and which would therefore replace the existing law. In other words, we certainly hope that our proposals could be regarded as retrospective and not simply adding further complexity by only applying to new arrangements.

There are four basic principles which underline the scheme. We certainly agree or we certainly assert that security of tenure must remain as a key issue. Particularly for those in the social rented sector who can expect and should be provided with rented housing on a long-term basis. We certainly see the importance of the retention of the principle of due process in both its elements. Firstly, that occupiers should be warned by notices that proceedings might be taken against them prior to any eviction and that a court should make the order for possession. That, I think, is simply restating what the current situation is. We have also adopted is what we have called the consumer approach, which is not new law but may be a new approach for housing practitioners. And the essence of that is really two things. The first is that we want the occupation agreement to be the document that sets out the rights and the obligations of both the landlord and the occupier, to get away from the situation where you often have either documents which are wholly incomprehensible or worse, documents that are positively misleading in legal terms where you have contractual terms with an off-the-record statutory overlay which you only find out about if you have adequate legal advice. The other issue about consumer law is that we want to build on the practice of mitigating market inequality through the use of fairness and unfair contract terms regulations. And the practice of the Office of Fair Trading is very much a part of the approach that we have adopted in relation to the consumer approach. And finally, of course, human rights. Somebody was saying this morning that housing cases of human rights, if not the most numerous of the cases so far brought, have nonetheless been very significant and we have got to make sure that any proposals we offer are in compliance with human rights principles. There are, of course, other underlying issues, perhaps not quite of the status of basic principles. But certainly one of the things that Nick Raynsford in charging us to undertake this work was very keen to assert was that we should create a system that allowed for flexibility in the housing market. And we cannot ignore other policy objectives, employment policy and so forth in the context of what we are trying to do in housing.

I have already mentioned that central to our proposals is this consumer approach with the focus on the agreement and with ‘fair terms’ included in those agreements. We propose two types of tenancy. Our

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creativity ran out, I fear, at this point. Two types, one labelled rather pathetically the Type I Tenancy: the other the Type II Tenancy. But very broadly the Type I is to replace the existing secure tenancy; Type II is to replace the existing assured short-hold tenancy. We have, however, wanted to draft these statuses in a landlord neutral way. We want to get away from the idea that there has to be a link between the identity of the landlord and the type of the tenancy that is created. So unlike secure tenancies which can only be granted by local authorities, our Type I tenancies would be able to be granted by any particular type of landlord. In terms of the scope of the scheme, broadly we have not trespassed, in fact more than broadly we have rather precisely not sought to trespass on other statutory schemes. So that business tenancies, agricultural tenancies and so forth are left untouched by our proposals. We raised the question of whether we need to retain the distinction between leases and licences at least for the purpose of defining our occupation agreements. Our provisional view is that our scheme should apply to all agreements which confer a right to occupy a premises as a home without worrying about the distinction between the lease and the licence. That will, of course, have important effects for third party rights but in terms of the relationship between the occupier and the landlord we do not think this is necessary. We do accept, however, that there will have to be some exclusions from the scheme. Holiday lets is one obvious example and there are one or two others that we mention in the Paper. The due process requirements I have mentioned, that notice and involvement of the Court should be there. We deal with the question of termination by the occupier which is sometimes left unclear. And we are also proposing that we should adopt what they have done in Scotland in relation to the problem of abandonment. We do not think that the law on explicit or implied surrender, no doubt beloved by real property lawyers in this country, is a sensible basis for the ordinary occupier who has just decided he cannot bear to go on living in a particular premises and walks away. And the essence of the Scottish proposal is that the landlord can get an order from the Court saying that the premises has been abandoned. This will then allow the landlord to regain possession without fear of proceedings for unlawful eviction and harassment. There is a right to the tenant if they re-materialise to challenge this.

I have mentioned that we have defined our statuses in a landlord neutral way. But we have not decided whether use of the tenancies should similarly be landlord neutral. We have invited views as to whether social landlords, for example, should have a free choice as to whether they use Type I or Type II tenancies. But we have also asked the question whether there should be a legislative framework that requires social landlords to use the Type I tenancy and only be able to use the Type II tenancy if certain defined circumstances exist. My hunch is that I will guess what the response to that question will be but it is nonetheless an issue that is out for consultation. In terms of private landlords, we see the Type II as the default model and that will effectively replace, as I have mentioned already, the assured short-hold tenancy.

We have a number of proposals that I think are potentially quite important and on which we are particularly looking for views. On the powers of the Courts, one of the criticisms that we often hear is that the present open ended structure of the discretion in the County Court when making possession orders is conducive to unpredictability of outcome. I do not know whether that is actually true but there is a lot of casual anecdotal evidence which suggests that is the case. And so one proposal we have is that the discretion should be structured to take into account a number of issues which the judges should be required to apply their minds to before making an order for possession. We have gone back to Lord Woolf’s Access to Justice Paper in relation to the appropriateness of hearings in possession cases and asked the question ‘should the suspended possession order, as it were, still continue to be an appropriate remedy that can be sought?’ We do think it is slightly odd that the tenant who has got into rent arrears can theoretically go to Court and be told that they might be thrown out but that they are not going to be thrown out today. But when the issue then becomes serious, that the landlord actually wants to go ahead and execute the warrant, there are no responsibilities to inform the tenant about this. No opportunity, unless the tenant happens to know what is going on and can find out about it in advance, no opportunity at that stage to make representations as to whether or not it is reasonable. And that, I imagine, would be a particular area in which the practitioners would have advice and comment that they would give us. We have got a number of other issues relating to enforcement, we are very keen to find a mechanism of removing the concept of the tolerated trespasser from our jurisprudence. We have made proposals about anti-social behaviour. I know that a number of people are very concerned about the issues that we have identified. I think that I would just ask you before you come to your final conclusions to actually have a look at the full argument in the chapter on anti-social behaviour. And in particular we do acknowledge and we state quite clearly that legal resolutions to the problem of anti-social behaviour must be the remedy of last resort, not the remedy of first resort. And we have proposed a number of procedural changes to try to ensure that

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registered landlords do not shoot first and then ask questions afterwards. But there remains, obviously, a question of proportionality. It has already been put to us that there are already a lot of remedies available, why do we need yet more remedies? And that is something that we will have to consider. Finally, as I have mentioned, mapping existing tenancies on to the new scheme is something that we are keen to achieve. I think that is going to be easier said than done but if we do not then we will be left with yet another layer of complexity added on to what we have already got.

It is not for me, of course, to tell you how you should respond. It would be impertinent and I would not wish to do this. There are a couple of points, however, that I would like to make. It is helpful, in the terms of the way the Law Commission operates, if those who respond state what they like about the content of the Consultation Paper as well as what they do not like. I am a bit concerned that insofar as we may have enraged people and provoked them to write, this results in a focus that is concentrating purely on the negative rather than on what might be regarded as the positives. And when we come to judge the overall response, I think it is helpful for the Commission to have, as it were, a balanced approach. We do specifically say that we are not necessarily asking everybody to answer all the examination questions. But particularly where organisations are responding, and I am assuming that HLPA would certainly put an organisational response in, it is very helpful indeed to have a fully rounded response which we would encourage. For example, there is a whole raft of particular issues that seem to have printed up in typeface which is so small that even I cannot see it. The deeming of all landlords to be ‘suppliers’ for the unfair contract terms legislation is an issue which may not be uncontroversial. I do just draw your attention to the fact that tomorrow Shelter is launching a new report on the case for a Code of Guidance on the private rented sector and whether that should become statutory. Shelter has developed these proposals completely without any reference to us at all, but it seems to me that their proposals do actually fit quite well with what we are doing although I would need to wait and see. There is an issue that has already been raised in public by the Council of Mortgage Lenders as to whether for existing housing association tenants Ground 8 can be abandoned as part of the package in relation to the Type I tenancy. There is an issue about whether the six months moratorium should be retained. I have mentioned the question about whether the powers of social landlords to grant particular Types should be regulated or left to choice. So there are a number of issues where we already anticipate that there will be points to be made and we look forward to hearing from you on that.

Outside of the Consultation Paper, as though there was not already enough in here, there are other issues that are coming up on the outside. For example, if all agreements are to be evidenced in a written agreement, then what are the Stamp Duty implications? We do not consider that in the Paper, maybe we should, but it is not there. And I would draw attention to those of you who are keen on this to Chapter 4 in the Report which looks at some of the practices in other common law jurisdictions. In particular we are, in this country, completely out of line with Canada, New Zealand and Australia in not having any kind of specialist housing tribunal or housing court for the resolution of housing disputes. The Lord Chancellor’s Department does not want us to think about that because they are not at all keen on the idea of a specialist court. But if that was something that practitioners here felt might be important, although we will not be able to do anything about it, I think it would be quite helpful in terms of creating a climate of opinion. I have given you our response deadline. We do have to be fairly firm about 12 July, I am afraid. This is because what we hope to achieve is a settlement of our policy by the end of this year, taking into account not only this Paper but the new Paper on Succession with a final report including a draft Bill by August 2003. And the basis for doing that is that, as Nick Raynsford said, the Parliamentary Session 2003/4 provides the window of opportunity. There cannot be anything as big as this in the Parliamentary Session 2004/5 because there is likely to be an election. If it came after an election, even if the Labour Government were to be re-elected, it is perhaps not the sort of issue that would go into a first year of office. So if we miss 2003/4 we are talking about a minimum of three years' delay which, I think, would be a missed opportunity. I do a certain amount of lecturing to the judiciary and the last time I stood up and gave an updating lecture to the judges I was introduced by a County Court judge with the words ‘I have always regarded housing law as essentially rather boring but here is Professor Partington to entertain you’. It was not quite put like that and the person who introduced me had the grace to say at the end that she did not mean that it was boring but it was a difficult subject. Well, we all know that it is a difficult subject. We at the Law Commission have tried to provide a framework that is simpler. I still think that there will be considerable scope for practitioners, for those of you who are worried about the future, I think there will be work here that will flow from our proposals. But I am here to introduce them. If you have been, thank you for listening.

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Chair: Well thank you for the reassurance in the last couple of sentences. Martin will now answer questions or respond to comments.

Elaine Sherratt, Streetwise Community Law Centre: I heard what you what you said with dismay about having to be hands off as far as rent control was concerned. What are you going to do with the odd bits of rent control that are still in the system? I mean, particularly, obviously the position of Rent Act tenants but also the rather weak and inconsistent controls of assured and assured short-hold rents where, because of the greed of London landlords, if you can actually get a case in time to the Rent Assessment Panel or wherever, you can sometimes control the rent to some extent. Are you able to make any proposals on that?

Martin Partington: I will answer the question directly in relation to the existing fair rent protected tenants. That seems to me completely unproblematic. We will not be able to map those tenancies on to the new scheme unless there is a special provision which protects their right to continue to go to the Rent Officer and to the Rent Assessment Committee for the purpose of seeking a fair rent. In terms of the use of assured short-hold rents I suppose our preliminary thinking is that the theoretical protection is so limited that one asks the question of the extent to which it is necessary to retain that. I think I would want to throw that one back and if it is important in practice please let us know because we must take it into account.

David Foster, Fisher Meredith Solicitors: When are we getting the detailed mapping proposals?

Martin Partington: I think the answer to that is when we produce the final report. We have obviously got to do it by then because the Parliamentary draftsmen will not be able to draft the Bill unless they know what we want to do with that.

Nik Nicol, 1 Pump Court Chambers: The Paper spends a large chunk of its time at the beginning looking for an overarching principle. It then goes on to justify only concentrating on law reform and not disturbing the overall context that currently exists in housing law which means, in particular, retaining something that looks like an introductory tenancy. So I think the best example of what I want to say is that it is quite possible that there is not an overarching principle. And the Law Commission must be prepared to accept that. If you do say that there is an overarching principle which retains this, the concept of an introductory tenancy or something like it, you are playing party politics. There has been no overall justification of the existing structure, apart from its complexity of housing law. Therefore, if you try and justify the existence of things like introductory tenancies, you are not just playing housing policy which you say you are not involved in, you are actually being a party politician on behalf of the present Government.

The other point I wanted to make is you dispose of the concept of a right to housing in a way which I certainly object to. You are quite right to say that it is no part of your particular project’s job to introduce a justifiable right to housing in English Courts. That would be something way beyond what you are supposed to be doing. However, to say that a right to housing has no part to play in your deliberations in a massive leap of illogic. There is already a right to housing. The Government is signed up to it. The Government is also committed to the progressive realisation of the right to housing. You are a Government body. If you do not take into account what is contained in the Covenants the Government has signed up to, no-one will. The right to housing is an overarching principle and it can provide many instances throughout your deliberations of which way you ought to be going to decide on various issues. For example, the structuring of the discretion on reasonableness is a perfect example of where the right to housing will provide you with a lot of answers as to what you want to put into that structured discretion.

Martin Partington: I hear what you say. Thank you very much.

Chair: That will inform the response. I have got a couple of questions myself. First of all, you have referred to succession rights and developments in relation to that. So can you tell us a bit about what is envisaged there? And secondly, the area of housing benefit is one which is not gone into in the Paper. Is that something that is going to be looked at and is there a reason why it has not been looked at in the context of this particular Paper because it does, of course, bear on security?

Martin Partington: There will be a particular Paper on that coming out in two or three months' time and the obvious issues that are going to circulate around that are the number of rights to succeed that ought to be available to individual tenants. I simply cannot answer the question but at the moment there all sorts of

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inconsistencies between the different tenure groups and we are going to have to try and find a way through that. Similarly, there is the whole issue of the extent to which it applies only to married people, to co-habiting spouses in heterosexual relationships and taking into account Stirling and Fitzpatrick and so on and so forth. We will be making proposals on those points as well.

In terms of housing benefit, we are just not looking at that because our terms of reference do not enable us to look at housing benefit. However, one of the reasons why I personally think that for the Type I tenancy the retention of Ground 8 is incompatible with the Type I tenancy is that we all know that large numbers of cases on the basis of two months' rent arrears are generated simply because of the failures of the housing benefits scheme. And we do not think that it is an appropriate response that social landlords should be able to get possession through no fault of the tenant but solely through the default of the housing benefit administration. Having said that, you will all have seen the piece in The Guardian or Inside Housing from the Council of Mortgage Lenders who are extremely unhappy about the idea that Type I tenancies, at least insofar as they apply to housing associations, should not have a Ground 8 attached to it. So that is disputed territory. There is no doubt that we will get powerful arguments from the Council of Mortgage Lenders. We want powerful arguments from the other side as well.

Jan Luba QC, 2 Garden Court Chambers: I think the reason you have not been met with a forest of hands is because most of the people in the room recognise the Consultation Paper as a tremendous opportunity to look in some detail at not only the breadth of housing law and what we have got to do about it but also the detail which we practice in every day. So you will certainly be hearing from the Association. You will be hearing from it, I hope, in some detail. But my own contribution follows up the indication you gave that there are a number of people who have expressed some concern about the passages in the Consultation Paper which deal with anti-social behaviour. And as one of their number, perhaps I could ask you just one or two things about those passages in the Consultation Paper? For a number of years, some of us who practice in housing have become very concerned at the extent to which the political agenda has been one in which the notion has developed that public and social landlords should take an increased role in the control and enforcement of public order. And we are very concerned that this may not be the proper role of a landlord. Yet the relevant chapter of your Paper rather suggests that it is almost axiomatic that a landlord or provider of property should have some role in controlling criminal and public order activity. And I just wondered why that premise had been accepted?

Martin Partington: I think we were influenced to a degree in our proposals not simply by talking to social landlords but also to the tenants of social landlords and I think it is fair to say that a number of tenants’ groups are as exercised by the damage to their lives done by the minority, the small minority, of serious anti-social behaviour on the part of particular tenants. So it is not, as it were, simply adopting a social landlord perspective on this. The point you make about whether or not it is appropriate for, as it were, public bodies of this kind to be involved in essence in public order which arguably is the question of the police is an argument that I have heard. And I suppose one question that one would throw back is: if it was left entirely to the police, what would the effect on the ground be? Would it be that the behaviour would be controlled or would things get worse rather than better? And I think we have to wait and see what argument there might be in relation to that.

Jan Luba QC, 2 Garden Court Chambers: The end of my question was about the difference between the general target duty and a specifically enforceable duty on the part of a victim that the landlord should use the powers?

Martin Partington: It may be at that point we felt that the process of drafting these Consultation Papers is not entirely straightforward and one of the issues again, it is a sort of question of practice, is that whatever the housing team may think, I have still got to get the issue through my fellow Commissioners. If you are telling us that we should go further than that, maybe it comes back to the right to housing or at least an aspect of it, then make the argument. But I also have to say that this will be one of the most highly contested areas. There are a number of people who will be approaching this from a different perspective, such as the police, the local authorities and tenants’ groups, and we are working with the Law Society at the moment to try and find a forum for a more consensual approach. And we will just have to see. Just as a first reaction, I am actually very persuaded by a lot of the argument in the LAG editorial that much more emphasis should be put on the social work support required to change behaviour rather than simply beating them over the head with legal solutions. But I think that is an area where, once again, one is perhaps moving beyond a law reform issue to a more social policy issue. And so the law reform has got

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to work with thinking on the social policy issue. But nothing is set in concrete and we want to hear as wide a range of response as possible.

Chair: Thank you very much, Martin, for coming to speak to us today. It is perhaps a first for a member of a consulting body to actually come in person and speak to us about what is proposed. The Law Reform Working Group has started work on producing HLPA's response. There will be another meeting on 22 May at 6.15pm at 2 Garden Court and members are welcome to attend.

We will now move on to the talks on Allocations and Homelessness by John Gallagher and Liz Davies.

2. Allocations and Homelessness

John Gallagher, Shelter: Thanks David. Good evening everyone. Although the title of this evening’s talk is Allocations and Homelessness, I think Liz and I have decided that we should concentrate on the Homelessness Act which is a daunting enough prospect to talk about in the time available. I am in fact going to talk about homelessness and I hope Liz is going to talk about allocations! And rather optimistically I did include in the notes towards the end Six of the Best, six of the most significant cases over the last six months. And they are in print that you may need a magnifying glass to read because of the need not to generate too much photocopying. But we will not get to those today, I fear.

In looking at the homelessness parts of the Act, I am tempted to refer you simply to my colleague Russell Campbell’s article in the HLPA newsletter on that very subject and to leave it there. But I think you probably expect a bit more than that. But do please look at Russell’s article which sums up some of the practical points very well. The Act itself is not a good read. It works by amendment and you have to fit the two Acts together, the 1996 Act and the 2002 Act side by side. Unless, of course, you have the recent publication by Jan Luba and Liz Davies which very helpfully puts the jigsaw together for you and prints the 1996 Act with the amendments. The Act received the Royal Assent on 26 February 2002. Only one Section and two fairly insignificant paragraphs of the Schedule are already in force. Section 8, I will come to it in a second. As for the rest of the Act we still have no definite date for implementation but the Government announced last Friday that the homelessness provisions in the Act will come into force in July. We are still not given a specific date which gives the impression that there may still be some slippage even there because if they are able to say July, it is not clear why they cannot say a specific date in July. But that is the intention to bring the homelessness provisions into force in July and also to bring the regulations to extend priority need into force at the same time. The provisions relating to allocations will not be brought into force until January next year. We are promised a new Code of Guidance on the homelessness provisions. There will not, as we thought, be consultation, at least on the homelessness provisions of the new Code but there will be consultation on the provisions of the draft Code on allocations. And it is intended to publish a fully revised Code of Guidance at a later stage. So presumably the initial publication will be on something of an interim basis, like as it was in 1997 except that, of course, we never got the full Code that was promised in 1997.

To summarise the main policy purposes of the homelessness provisions, they are best summarised in three ways. There are new duties on local authorities to carry out reviews and to publish strategies to tackle and prevent homelessness, that is one. There is a new duty to provide potentially long-term accommodation for unintentionally homeless people in priority need, together with other tinkering reforms that improve the general homelessness process. And thirdly and, of course this is not in the Act but it is in the draft Order, there is to be an extension of priority need to new groups of particularly vulnerable homeless persons. To look at those provisions in a little more detail, if I could refer you to page 2 of the notes. The first 4 Sections deal with the duties to formulate homelessness reviews and strategies. They are the only parts of the Act which are free-standing, which can be read as they stand and not by amendment of the 1996 Act. Section 1 of the Act seems to be phrased in terms of a power to carry out a homelessness review and to publish a homelessness strategy. But then it goes on to say that the authorities have a duty to publish their first homelessness strategy within 12 months and to publish fresh strategies at least every 5 years thereafter. So, effectively, the power becomes a duty because a strategy cannot be published without having done a review.

What are reviews and strategies? Well, a review is a review of the scale of homelessness in the area, levels and likely future levels of homelessness. That is the first aspect of a review. Secondly, activities

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which are carried out at present for the purposes of preventing homelessness, providing accommodation and providing support for homeless persons. And thirdly, an assessment of the resources currently available to the housing authority and to other authorities such as social services and registered social landlords and voluntary organisations in the area for those purposes. A homelessness strategy is a more pro-active measure but very much phrased along the same lines. The purpose of a homelessness strategy is threefold: prevention, provision and support. Preventing homelessness in the district, securing that sufficient accommodation is available for those who are or may become homeless and thirdly support, providing satisfactory support for homeless persons, people who may become homeless and people who have been homeless and need support to prevent them becoming homeless again. Now, from our point of view, perhaps the most relevant aspect of this, apart from the obviously welcome purposes of the homelessness strategy, is in Section 1(5) which is towards the top of page 2. That authorities should take their homelessness strategies into account in the exercise of their functions. So whatever an authority says in its functions is a relevant factor in the way it exercises its powers and fulfils its duties to homeless persons. And one can foresee many points of law and grounds for judicial review coming out of the failure to take relevant factors into account which appear in the authority’s own strategy.

Shall we move on then, to page 3 of the notes? In section 5 there is a power, a power only to provide accommodation for people who are not in priority need and not intentionally homeless. This will not be of much use to the local authorities in London, the South East and other areas of high housing stress. But it will enable some authorities, those few authorities that we hear about who do not have housing stress in their areas to offer accommodation, presumably on a non-secure basis to people who are not in priority need and not intentionally homeless. But perhaps the most far-reaching part of this part of the Act is the changes to the homelessness duty and the abolition of the two-year limit on the present duty. As we know, under the 1996 Act the duty to secure suitable accommodation was limited to two years. The Act, when in force will remove that two-year limit and with it will go Section 194 of the Act which gave authorities the power to continue providing accommodation after the two years because, of course, that will not be needed any more. Anybody who at the date the Act is brought in is owed the current duty under Section 193 or is being accommodated under the power in Section 194 will transfer to the new potentially indefinite duty. Now the policy intention here is found in an explanatory note to the Homelessness Bill which refers to the purpose of finding a settled housing solution for everyone who applies as homeless. But you will not, of course, find the terms, the phrase ‘settled housing solution’ or the words ‘permanent accommodation’ or ‘indefinite accommodation’ anywhere in the Act itself. Instead, you find a duty which has had the two-year limit removed but which is now defined by events which cause it to cease and those events are set out in Section 7 of the Act which amends Section 193. Many of these events will be familiar already.

The first one is where an applicant is informed of the possible consequence of refusal and is informed of their right to request a review of the suitability of an offer of accommodation but nonetheless refuses an offer of accommodation which the authority deems to be suitable. Then the duty will cease. The applicant ceases to be eligible for assistance; the applicant becomes intentionally homeless or accepts an offer of accommodation made from the Allocation Scheme, well that much is obvious. This next one is new; the applicant accepts an offer of an assured tenancy, a full assured tenancy from a private landlord. It is not where an offer is refused, it is where an applicant accepts an offer. That discharges the duty. Applicant ceases to occupy; that is no change. Then we have a change to Section 193(7) where the applicant, having been informed of the consequences and of their right to review, refuses a final offer of accommodation made under Part VI. And a final offer is defined, top of page 4, as one that is in writing and one that merely states that it is a final offer. It claims to be a final offer and moreover, the authority must be satisfied that the accommodation is suitable for the applicant and it is reasonable for him/her to accept it. Does this mean an end to the one offer only policy that many if not most local authorities adopt? Well, Lord Falconer in parliamentary debates seemed to say that the word ‘final’ must indicate that something has gone before it. So that there must have been other offers before a final offer is reached. But in principle, I suppose, there is no reason why a single offer could not also be a final offer. I am not quite sure what we will see in the Code of Guidance but we will expect to see something about that. Then the last way in which the duty can be discharged is where the applicant accepts a qualifying offer of an assured shorthold tenancy made by a private landlord. Now there are quite a number of protections built in there. An offer of an assured shorthold is only a qualifying offer if it is made with the approval of the authority and under arrangements, which is a little bit vague, under arrangements made by the authority with that landlord. It is a fixed term tenancy, it does not say how long the fixed term should be, and it is accompanied by a written statement which tells the tenant that he/she has no obligation to accept it, no

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obligation at all. No question of suitability here, the tenant can simply turn it down. The applicant must sign a statement confirming that he/she has understood that the authority’s duty will end if they accept the offer of the shorthold. Now one might think who on earth is going to accept a shorthold when the offer is put in those terms? I think one can still imagine some local authorities who will say to someone ‘this is your way out of temporary accommodation, you are likely to be in temporary accommodation for quite some time unless you accept this offer’. Some people will accept an offer because it gives them a greater choice of location than waiting for an offer from the Allocation Scheme. But we also need to remember that shortholds can still be used as temporary accommodation pending a more indefinite offer. We have still got to contend with Section 193(5), the very first of those situations which cause a duty to end and that, of course, says that if having been warned of the consequences if a person refuses a suitable offer the duty will end. There is no reason why an assured shorthold tenancy should not be procured in that situation provided, of course, that it is suitable as happens at the moment. The difference is that if it is accepted, it will not be a full discharge of the authority’s duty as it can be at present.

Section 8 of the Act is the only Section that is already in force and it is a welcome change. It has two effects, first of all an offer of accommodation made under Section 193, the main homelessness duty, will be an offer only if it informs the applicant of their right to request a review. Strangely enough, that is not the case under the 1996 Act. Where an adverse decision is made on issues of intentionality or on priority need, of course there is an obligation to inform the applicant that they have the right to a review. But not where there is an issue of suitability. Now an offer will not count as an offer unless it does that. And the case of City of Westminster v Alghile must be one of the most short-lived decisions ever because it has been reversed. And the situation has now returned to the old situation in the Byfield case whereby a person may actually both accept an offer of accommodation despite the fact that they consider it to be unsuitable and also request a review of its suitability. So they may decide to accept as an insurance policy for fear of being left without anything at all if the review is unsuccessful. Then we have a couple of disappearing acts, Sections 197 and 207. Section 197 the opt-out duty whereby authorities could content themselves with offering advice and assistance if they took the view that there was other suitable accommodation available in their district. That was very little used, mainly because of other conditions that the accommodation had to last for two years. But that will go when the Act comes in. And anybody who has actually been owed the Section 197 duty will now be owed the Section 193 duty, the new potentially indefinite duty. Section 207, top of page 5, will also go. That is the restriction on local authorities that they should not use their own housing stock for more than two years out of three, any two years out of three, in providing essentially temporary accommodation for people awaiting a permanent offer. There never seemed to be much point to that and the Government has recognised that and it disappears as well.

Section 10 of the Act extends the conditions in which it is recognised that it is not reasonable for a person to occupy accommodation to situations not only of domestic violence but to situations where it is probable that continued occupation of the home will lead to violence from any source whatsoever, defined in terms of actual violence or threats of violence which are likely to be carried out. The Code of Guidance did always request authorities to consider treating people as homeless in this situation but now it is in the new Act. And the converse of that is that a referral back to another authority on grounds of local connection cannot be made where it is probable that their return to that area will lead to violence from any source.

Then coming on to County Court appeals. These again are piecemeal amendments but very important ones. The first amendment is to the inflexible time limit of 21 days which causes us all extreme stress. And I am not sure the new situation will be a great deal better but there is now the power for the County Court to give permission for an appeal to be brought after that deadline. As long as it is satisfied that the applicant had a good reason for being unable to submit their appeal in time and for any delay in applying for permission after the 21 days. Now I do not think we can sit back and assume that permission will be granted routinely by any means. We will have to show good reasons such as, perhaps, that the authority has completely failed to supply a copy of its housing file despite having been asked to do so.

Then we come to a new remedy where an authority refuses to provide temporary accommodation pending the outcome of an appeal to the County Court. So we have here a situation where there has been an original decision, there has been a decision on review which is also adverse to the applicant and the applicant is now appealing on a point of law to the County Court. And as we know, Section 204(4) gives authorities a discretion whether or not to extend temporary accommodation pending the outcome of the appeal. Up to now, the only means of challenging the exercise of that discretion has been by judicial

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review but Section 11 creates a kind of mini-appeal. An appeal within the appeal whereby if the applicant is dissatisfied with a decision either not to provide accommodation or to provide it only for a limited period of time, he/she may appeal to the County Court against that decision. The Court can make an interim order pending the hearing of that mini-appeal and the Court shall confirm or quash the decision under appeal by which is meant the decision as to temporary accommodation only. And in doing so, shall apply the principles applied by the High Court on an application for judicial review. Now that does not give much consolation if the County Court is going to apply those principles in the same way as the Court of Appeal in the case of Brighton and Hove ex parte Nacion in which Lord Justice Tuckey said ‘that it was an entirely futile exercise to seek to say that in some way the local authority’s discretion was wrongly exercised’. Only in a very exceptional case would there be any reasonable prospect of interesting the Court by way of judicial review to interfere with the exercise of the very broad discretion which the council have, bearing in mind that they exercise it knowing the circumstances of the applicants, the range and availability of accommodation in their area and the other matters which have been identified. Now with those judicial attitudes, it does not create much confidence but one would hope that we can persuade our friendly County Court judges to adopt the approaches in the cases dealing with temporary accommodation pending reviews. Some of which are listed there, R v L.B. Camden ex parte Mohammed, R v L.B. Newham ex parte Lumley or the older cases prior to the 1996 Act such as R v R.B. Kensington and Chelsea ex parte Hammell which more or less took it for granted that an appeal was no appeal at all if a person’s situation could not at least be preserved by keeping them in temporary accommodation. Now what this leaves is an enormous gap still because we still have no remedy in the County Court against the refusal of an authority to provide temporary accommodation pending the outcome of a review. And it is total nonsense that we now have a remedy in the County Court for a refusal to provide temporary accommodation pending an appeal and still we have to go for judicial review at the earlier stage if the authority fails to exercise its discretion lawfully in relation to accommodation pending a review. It makes no sense at all. Lord Falconer's justification for that was that it would interfere too much with local authority discretion but one would have thought that judicial review did that anyway.

Section 12 of the Act enjoins co-operation in cases involving children between local housing authorities and social services authorities. And it works both ways in that with the permission of the applicant, the housing authority shall refer the essential facts of the case to social services. And those cases are where a family are found to be ineligible for assistance or have found to be intentionally homeless. But it stops there, this duty is a referral duty only, it does not place any obligation on the authority to whom the essential facts are referred to do anything other than what they consider may be their duty or their powers under the Children Act. The referral works the other way round where a social services department or authority asks the housing authority or its own housing department for help in performing their functions under the Children Act. Then the housing authority must provide such advice and assistance as is reasonable in the circumstances.

I would just mention briefly the strengthening of the advice and assistance duties. Where the authority’s only duty is to provide advice and assistance, middle of page 7 here, ‘the advice and assistance … must include information about the likely availability in the authority’s district of types of accommodation appropriate to the applicant’s housing needs (including … the location and sources of such types of accommodation)’. So perhaps, just perhaps, the days of giving people lists of accommodation agencies may be at an end. Because how can an authority fulfil that duty without taking an account of the fact that the person is in receipt of housing benefit and needs accommodation or needs to be referred to agencies or landlords which let to people on housing benefit.

Interim accommodation: filling the gaps. I must mention this if only because HLPA’s amendments were largely instrumental in bringing about these changes. They may seem technical and they may seem minor but they are quite important in certain situations. Just to take the first example there, the power to ‘continue to secure’ accommodation pending a review. That has now been changed to a power to secure accommodation. Because some authorities would say ‘well we haven’t secured accommodation up to the date of the decision therefore we haven’t the power to do it after the decision. Because the Act said continue to secure accommodation’ and so removing those words ‘continue to’ may seem to be technical but in some situations it can make the difference between accommodation being provided and not. And there are one or two other amendments of that kind.

Finally, I will refer you please to the draft Priority Need for Accommodation Order on page 8 of the notes. And I am sorry that this is left to the end because it is as important as anything else we have talked about

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tonight. The classes of priority need, can, of course, be extended by statutory instrument by the Secretary of State and that is why it does not need to be in the Act itself. We know the four existing classes based on pregnancy, dependent children, vulnerability for certain reasons and emergency and other natural disaster. The Order will add several new classes of priority need and they are listed there. A young person who is aged 16 or 17 will automatically be in priority need provided that he/she is not a ‘relevant child’ for the purposes of the Leaving Care Act. Because if he/she is a relevant child they have been in care and care has ceased, they will remain the responsibility of the social services authority rather than the housing authority until they are aged 18. Then we have a person aged 18 to 21 inclusive, in other words up to the age of their 22nd birthday who is a former relevant child who was looked after by the local authority for a certain period before the age of 18. They will automatically be in priority need. Then we have classes which are based on vulnerability. A person who is vulnerable as a result of having been looked after, accommodated or fostered. So this potentially includes people of the age of 22 or over who are still suffering the effects of what the Government refers to as an institutionalised background. They are still vulnerable because of their experiences of having been in care. And a person who is vulnerable for three other reasons, first of all having served a custodial sentence, imprisonment in other words. A person who has been in prison and is vulnerable, less able to fend for themselves such that they will suffer more than most because of that imprisonment. Of course they still have to surmount the hurdle of intentionality, they still have to show that they did not become intentionally homeless because of their conviction and imprisonment. And finally a person who is vulnerable as a result of ceasing to occupy accommodation by reason of violence or threats of violence which are likely to be carried out. Very welcome, a person who is vulnerable purely because of the experience of violence or of threats of violence and not, of course, only domestic violence but this covers violence from an associated person or from some other person. It is interesting to compare those classes with the classes of extended priority need that are already in force in Wales. I will not go through the various categories but they are slightly different. In some ways the Welsh Order is more generous, in some ways not. It is a bit curious that there are different conditions operating across the border than there will be in England. Just to finish off by reminding you that this Order is also likely to come into force in July.

Chair: Thank you very much John. Any questions that anybody wants to ask John straight away?

Victoria McNally, Brent Community Law Centre: Just in relation to Section 7 amending Section 193. Section 193(6) which states that the applicant ceases to be eligible for assistance has a category when the main homelessness duty will cease. Can you explain what that means? Is that an on-going assessment for eligibility?

John Gallagher: The eligibility for assistance? That refers particularly to the immigration criteria. The only example that I can think of is where a person has been accommodated as an asylum seeker because they arrived before the NASS scheme came in, before April 2000 and they have lost their asylum seeking status because they have had an adverse decision.

Andrew Brookes, Anthony Gold Solicitors: I have got a question about Section 5 which is, for example, single homeless people. Where the authority decides that someone is not in priority need, do judicial review principles apply in the sense that they would need to give a reason why they were not exercising their power to provide accommodation in that case? And so if a decision simply says someone is not in priority need the decision letter would be defective if it did not give a reason why they were not exercising that power, or is that taking it too far?

John Gallagher: I am not sure we could quite go as far as saying that the decision letter would actually be defective but certainly if requested to do so the authority, I agree, would be obliged to give reasons why it was not prepared to exercise the discretion in favour of securing accommodation in that situation. Having said that, I do not anticipate a crop of judicial reviews on that because authorities in areas of high housing stress would be able to quote the number of people who were in priority need and use that as a reason. But bearing in mind the rules of a blanket policy, they must at least give consideration to the individual circumstances, certainly.

Chair: The way I would see that working, if there was a strong case and the authority refused, then that would raise a prima facie judicial review because it would seem that they had failed to take into account relevant matters or come to an irrational decision. But, of course, there would be no duty to give reasons. You cannot say automatically it would be defective for failure to give reasons.

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Elaine Sherratt, Streetwise Community Law Centre: I suppose on a similar note in relation to duties to, say, single homeless. What possibilities are there for using this strengthened duty to give advice and assistance? I mean, I was always putting imaginative suggestions to local authorities about how they might advise and assist somebody who they were not going to do anything for. They were always able to get away with it because before it was such assistance as they considered appropriate. Now there is a duty to advise and assist the applicant in the efforts he is making to secure accommodation. Can I ask for a deposit?

John Gallagher: Asking for a deposit, yes. Certainly assistance can and should cover a deposit. And since there is now a specific requirement to assess a person’s needs before advice and assistance is provided it is difficult to see how an authority could properly fulfil that duty without addressing the specific needs of the individual. And if there are limited opportunities, as there almost always will be for people on housing benefit in the area and there are most likely almost no opportunities for people without deposits, then the question is really how far this is an enforceable duty on behalf of the individual? I do not know whether David or Liz have any views on that. I cannot see why it should not be enforceable by the individual?

Liz Davies, 2 Garden Court Chambers: I agree, I mean I think that it is now tailored for individual advice and assistance and assessment of that individual’s needs and therefore if you make representations that there should be a deposit then they need to provide reasons if they do not agree. And I do not see why that should not be subject to judicial review.

Chair: No other questions for John straight away? Then we will pass over to Liz who is really going to talk about allocations.

Liz Davies, 2 Garden Court Chambers: My paper is called Allocations Homelessness Act 2002 and Other Recent Developments but concentrates primarily on the Homelessness Act. I will comment briefly on recent developments in relation to the trials and tribulations that Lambeth’s allocation scheme have been going through. You will remember that it was struck down because some 80% of the allocations were going to the homeless. Lambeth have now been granted permission to appeal that decision out of time and an expedited hearing has been ordered. So we will see more of that. But they have also, on 11 April, had part of their scheme struck down for a different reason following on from the Tower Hamlet’s decision on allocations. The case is called Lindsey v London Borough of Lambeth, it was heard on 11 April and Mr Lindsey fell within two of the statutory reasonable preferences, B and F, that the scheme had no provision to assess composite need. And on that basis then, the scheme was declared unlawful and permission to appeal was refused.

I will go on now to the Homelessness Act. I will explain how the paper is structured because in a sense this part of the Act is even harder to follow than the homelessness part of the Act because it just deletes whole parts of Part VI of the 1996 Act and then substitutes new Sections. The Sections that are bold on the paper are the Sections in the 2002 Act and then the non-bolded Section numbers are those in the 1996 Act. But what I have not distinguished in type is the new Sections inserted by the 2002 Act as against the old Sections that it is deleting or repealing. But I have put the word ‘new’ in front of most of them so I hope it is obvious. Broadly speaking, if it is in bold it is in the 2002 Act and if it is not in bold then it is either a new or existing part of Part VI of the 1996 Act.

(See attached paper)

Chair: Are there any further questions?

Contributor: I am a little confused about section 8, where it provides that an offer of accommodation must inform the applicant of the right to request a review of suitability. This seems to duplicate the part of section 7 which also states that the applicant, on being made a final offer under Part VI, must be informed of the right of review before there can be any question of the authority discharging its duty.

John Gallagher: You’re right to be confused. The amendment to section 193(7) made by section 8 will have a very short life, because the present sub-section (7), including the amendment, will be replaced by the new sub-section (7) [introduced by s.7(3) of the new Act] when the remainder of the Homelessness

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provisions come into force, in July or whenever. So that duplication won’t actually exist. But the same amendment (about informing the applicant of a right to review on suitability) is also made to section 193(5), which covers all other offers, that is, offers which are not final offers under Part VI; and that will survive, because sub-section (5) is not being replaced.

Contributor: The new appeal to the county court against the refusal to provide temporary accommodation pending an appeal doesn’t seem to amount to very much. It will be of little use if the courts take as long to list it for hearing as they do with most other matters.

John Gallagher: I think that’s a bit pessimistic. It’s true that it will be an intensely bureaucratic exercise. Having lodged your main appeal, you will then need to prepare a separate Appellant’s Notice (the Form N161) with separate grounds, an updated witness statement and even a fresh bundle of documents, to accompany the appeal-within-an-appeal on the issue of temporary accommodation. But you should be able to get an urgent hearing in the county court, in the same way as you would with an injunction. In section 10 of the Appellant’s Notice, which invites you to make any other applications, you would include an application for an interim order pending the hearing of the subsidiary appeal, and you should get a more or less immediate hearing on that.

Contributor: Where the housing authority makes a referral of a family with children to social services under the new section 213A, is there any obligation on social services to assist them?

John Gallagher: Presumably it is intended that social services should carry out an assessment of the children’s needs, and then determine what services if any they will provide. But the duties are only duties of co-operation between authorities. And, as we know, A v Lambeth LBC and other cases have proceeded on the basis that the section 17 Children Act duty is no more than a “target duty”. There is nothing in the Act, or in the Adoption and Fostering Bill, which would enable an individual child or parent to require social services to take any particular action following a referral.

Contributor: Do you consider that the amendments to the advice and assistance duty are likely to make any practical difference?

John Gallagher: They should do, although as always enforcement will be the problem. The fact that an authority must carry out an assessment of the applicant’s specific housing needs must mean that the assistance should be more targeted and appropriate than in the past. It is difficult to see how an authority could claim to fulfil that duty to a person who is in receipt of housing benefit by simply giving them a list of letting agents, when so many landlords will not accept people on benefits. The question as ever is whether this is a duty which can be enforced by the individual. It may be an uphill task to get public funding to challenge a breach of the advice and assistance duty alone, but in principle I think there is no reason why a failure to perform the duty should not be challengeable by judicial review.

Chair: I would like to thank both our speakers and move on now to reports from the Executive Committee and the Information Exchange. Firstly, we should decide whether to hold a special meeting during June to consider our response to the Law Commission's Paper "Renting Homes". Could I have a show of hands for those in favour? That appears to be carried so a date will be decided at the meeting of the Executive Committee next week and members will be notified as soon as possible.

Andrew Brookes, Anthony Gold Solicitors: I had a meeting with the London Regional Development Manager at the Legal Services Commission. I was concerned that his view was that there was no problem with the provision of housing advice. He did not accept that demand was greater than supply, or that there were practitioners who were pulling out of housing. That is not my experience. I think we need to respond to him, so if you know of examples of firms and other organisations pulling out of legal aid, please tell me.

I would also like to draw your attention to a report produced jointly by the Law Society and Civil Justice Council called "More Civil Justice. The impact of the Woolf reforms on pre-action behaviour". The report has quite a lot about housing disrepair in it and may be of interest to members who do housing disrepair. The report assumes that the pre-action protocol for housing disrepair will be introduced, although of course it has not yet been introduced. I understand it is before Lord Justice May for consideration at the moment.

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Robert Latham, Doughty Street Chambers: I would like to give an update on s.17 of the Children Act and the power to secure accommodation. R (A) v L.B.Lambeth has recently been reversed in the Court of Appeal in R (W) v Lambeth. The position now is that there is a power to secure accommodation, but not an enforceable duty. Today, Stephen Cragg has been granted leave to appeal to the House of Lords in R (A) on this latter issue. If leave to appeal is also granted in R (W), the two matters will be heard together. I am also concerned as to whether choice based lettings will work in inner city areas where the demand for housing far outstrips the available supply. Lambeth provides an example of a choice based scheme. The continuing litigation against Lambeth has established not merely that their scheme fails to comply with the reasonable preference criteria in s.167 of the Housing Act 1996, but also that Lambeth is failing to allocate in accordance with the published scheme. Recent challenges have revealed that officers are ignoring not only the published rules, but also the written instructions. In effect, officers are allocating at whim.

Newham is not the only authority which is moving in this direction. Ealing, Brent, Harrow, Hillingdon and Hounslow are introducing a common choice based lettings scheme whereby available lettings will be published in a free newspaper "Locata Homes". The implementation of the scheme has been delayed and is initially to be restricted to one bedroom properties. It could prove a squatter's charter. It is difficult to see how the scheme will assist in meeting the needs of the most vulnerable applicants whose disability or language difficulties could deter them from bidding. What will authorities do if those in expensive temporary accommodation do not bid for offers?

Part VI calls for fair allocation policies where offers are made to those in greatest need. The danger of choice based lettings schemes in inner city areas is that those with political muscle will gain at the expense of those in greater need - a return to the jungle and the survival of the fittest. HLPA should monitor how these policies operate in practice.

Chair: I would now like to thank you all for attending and close the meeting. The next meeting will be held on 17 May and the topic is Housing Benefit and Possession.

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