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Second Schedule—(Further Provisions As To Repair Where Tenant Retains Possession)

Volume 531: debated on Tuesday 27 July 1954

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Lords Amendment: In page 55, line 30, at end insert:

"Failure of tenant to carry out initial repairs

4. Where, by virtue of an agreement or of a determination of the court, the tenant is

required to carry out initial repairs to the dwelling-house, failure by the tenant to carry out the repairs within a reasonable time in accordance with the agreement or determination shall be treated as a breach of the obligations of the tenancy for the purposes of paragraph ( a) of the First Schedule to the Act of 1933 (which relates to recovery of possession where the rent has not been paid or any other obligation of the tenancy has not been performed)."

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This is an Amendment to which the right hon. and learned Gentleman the Member for Neepsend (Sir F. Soskice) referred when we had the general discussion on the whole of the series of Amendments dealing with initial repairs. It is an important Amendment and it provides that where a tenant has undertaken to carry out the initial repairs, then failure to do those repairs within a reasonable time shall be treated as a breach of the obligation for the purpose of paragraph (a) of the First Schedule of the Rent Act, 1933.

The effect of this is to give the landlord ground for recovery of possession of the dwelling-houses provided that the court consider it reasonable in the circumstances to grant an order for possession. I emphasise that, provided that the court consider it reasonable in the circumstances to grant an order. A provision of this character is a necessary consequence to enabling the tenant to carry out initial repairs against the landlord's wishes, for it is useless to leave the landlord merely with a right to bring an action for damages because this right may well be abortive.

I submit that the sanction proposed is not calculated to increase the tenant's liability for it imposes upon him no greater burden of repairs than he was willing to carry out at the beginning of the statutory tenancy. His liability for initial repairs must be one which he voluntarily accepts and it would be grossly unfair to the landlord if the tenant, after offering to undertake the repairs, were able to continue in possession whilst wholly neglecting to fulfil the obligation he freely accepted in the recent past.

If he does wholly neglect to fulfil this obligation which he freely accepted quite recently, then the landlord can seek to obtain possession but he would not get it automatically. The court still has to be satisfied that the grant of a possession order in the circumstances is reasonable, and if the court comes to the conclusion that the landlord is not being reasonable then, of course, the order would not be made.

12.15 a.m.

Were it not for the fact that, as the Solicitor-General has pointed out, there is the additional safeguard that the court will not make an order unless it thinks it is reasonable in all the circumstances so to do, I certainly would unhesitatingly advise my hon. and right hon. Friends to disagree with the Lords Amendment. As the Solicitor-General has pointed out, it is some consolation to the unfortunate tenant to know that before the landlord can turn him out of his house it has to be shown to the satisfaction of the county court judge that it is reasonable so to do. But I do not think that we should part with the Amendment without placing on record our very keen disappointment that at the last minute of what I hope is the last hour of our debate on the Bill the Government should have taken it upon themselves to have yet one more thrust at the unfortunate tenant. Surely they have done enough already. Why cannot they leave him alone?

As I said earlier, if an unfortunate man has thought that he could carry out perhaps £150 or £200 worth of repairs, or perhaps has undertaken to do so in despair of the cost of getting somebody else to carry out repairs, and has then found that he is faced with having to pay a large rent and having to carry other burdens under a Conservative administration and therefore is unable to do so, surely, if there is to be a sanction against him, to turn him out of his house or to threaten him with being turned out is unnecessarily savage.

I am perfectly sincere in saying that when the Solicitor-General seeks to justify this step on the part of the Government by the arguments which he used he demonstrates even more clearly than hitherto he has demonstrated how completely ignorant he is of the circumstances of the sort of tenants with whom the Bill deals. To say that it was the tenant's fault that the repairs were not carried out and that therefore he has no ground for complaint when he is thrown out of his house is to look at the matter from a wholly unreal standpoint. The repairs have accumulated over the years. The tenant is in the position—

These are repairs which the tenant has voluntarily undertaken to execute, presumably quite recently.

I am perfectly aware that we are talking of repairs which may have accumulated over the years, which the notional landlord—and that is what he is—has never bothered about and which, at the end of the long lease, the notional landlord suddenly takes it into his head to use as a lever to get the tenant out. The tenant is then confronted with the alternative either of paying for the repairs, probably by instalments which he cannot afford, or undertaking to do the repairs by himself.

Perhaps we are all more optimistic than we ought to be. I am quite sure that on this side of the House we were more optimistic than we should have been when we first considered the terms of the Bill. When the tenant finds that his optimism has been a little misplaced and after all he cannot do the repairs, it appears little short of monstrous that the Government should go out of their way to use that as one of the grounds for dispossessing him. This Amendment is quite unnecessary. The Government could have left the Bill as it was or, if they wanted some sanction, they might have provided that the landlord did the repairs and charged the tenant up as if in the first instance he was entitled to do them and recover the cost by instalments from the tenant. I cannot understand the provision in this Amendment except as a new achievement on the part of the Conservative Government in thrusting at the unfortunate tenant.

The only thing which influences me in not advising my hon. Friends to vote against the Amendment tonight is the fact that the tenant has the protection of a humane county court judge who will stand between him and the Conservative Government, aligned with the landlord. For that reason we can reluctantly let the Amendment go, although it is a thoroughly bad Amendment and the Government ought to be ashamed of it.

I want to add my voice to that of my right hon. and learned Friend the Member for Sheffield, Neepsend (Sir F. Soskice). We must take grave exception to the fact that at the very last moment landlords are being given a new ground for possession. We strongly object to that, as we have objected to other new grounds for possession throughout the Bill.

I must remind the House that under the Bill we have it in black and white, as never before, that even where a tenant has failed only to pay an insurance premium, the landlord can claim possession. This is something which has never been the practice before. Where the tenant fails to pay his rates the matter is always—in the past—dealt with by getting a settlement through taking the tenant to court. Under the Bill, however, that is also made a specific ground for possession. This is entirely new. Now, at the last hour, we have still another ground upon which the landlord can claim possession of the tenant's dwelling.

A few moments ago we had an example of a tinsel gift to the tenant where the landlord is a local authority, although in that case all sorts of safeguards, including public opinion, are available if the local authority behaves unreasonably. Here, on the other hand, no protection at all is given to the tenant.

The Solicitor-General said that this was a necessary consequence of allowing the tenant to do the repairs. In my submission it is not a necessary consequence at all. All kinds of other remedies are available to the landlord. He could take the tenant to court for damages as the tenant had broken the agreement, or do the work himself and see that costs are granted to him in the county court, or in the high court if the sum were over the maximum with which the county court can deal. There is no reason why that procedure should not be followed, for it gives the landlord complete security Why should the tenant lose his home. The House will notice the difference in treatment. If we are dealing with a landlord who, sometimes for year after year, has failed to meet the elementary obligations to keep a house in a fit state under the various Health Acts, all that happens is that the local authority does the repairs and the landlord then has to pay for them. There appears to be one standard of treatment for the landlord and an entirely different standard for the tenant. We protest strongly against that.

When this matter was considered in another place—and we are grateful for the concession whereby the tenant can undertake the repairs—nothing was said about this penalty being inserted. The Government said in another place that the arguments for allowing the tenant to do the repairs were substantial and that they would be considered, but no hint was given that this additional sanction would be put in the Bill. It is treating the House with less than fairness, just as it is treating the tenant with less than justice, that this penal provision should be inserted, and I hope that even at this stage either the Government will make some further announcement or my hon. Friends will consider what action they should take.

In another place, at the conclusion of the Report stage, when the whole discussion appeared to have been concluded, a noble Lord rose and moved this Amendment. He moved it on the nod without a single explanatory word. A question was asked by a noble Lord opposite as to whether there was any protection for the tenant and the noble Lord who sits on the Woolsack said he thought there was. He said that the words "it shall be reasonable to make the order" applied—and on that the Clause passed through another place. It has now come before us for our deliberation. In the early hours of the morning very near the end of the Session—although we shall reassemble and continue our labours—it has been brought before us. We are being asked to consider the introduction of this new Clause —this penal Clause, and I shall explain why it is penal—drafted in as savage a way as possible. We have been told, quite casually, that subsection (3) had been dropped out, but I make so bold as to state that I doubt if three hon. Members out of the total of more than 600 now know what is the state of this Bill or what is the meaning of the Amendments so far as obligations are concerned.

The Clause is penal in my opinion because it refers with a complexity of that type in which Parliamentary draftsmen seem to delight, to "a failure to maintain" as a breach of an obligation. If it was stated that the failure to maintain should be regarded as a breach of the Clause, then it would have carried out the intention of the right hon. and learned Solicitor-General; because a breach of an obligation is a ground for making an order. But once an agreement is made and not carried out, one has established a breach legally, without having to assert and to prove that there is a breach within the exact judicial meaning of that word.

Then we come to the position where the Solicitor-General wholly fails to understand what really are the facts. He tells us that the tenant may voluntarily agree to do the repairs. The tenant, faced with an appalling burden, and wondering whether it would be better to try to "do the job on the cheap" or to let the landlord do it, signs an agreement. Does the Solicitor-General call that a "voluntary agreement"? What happens? We are all victims of circumstances; not one of us can say with absolute certainty what may happen to us in the next five minutes, and let us think for a moment of the man concerned with the place where bricks are being pulled out; where one starts doing repairs, and something comes down, or where old beams are discovered in such a state that they have to be removed and replaced. All of a score of different things may happen to put the cost entirely beyond the tenant's means.

But there is more. The man who decides that he can afford to repair his house may, the next day, be told by the doctor that somebody very near and very dear to him is stricken with a long illness; that man may have to re-arrange his plans, but is that man covered? The learned Solicitor-General says that all this is covered. In the 1933 Act there are the magical words, "if the court thinks it reasonable to make the order"; but these things have to be interpreted within the line of the decision.

The county court judge has not complete freedom in this matter; and here I would say that nobody has expressed more approval in this House than myself for the county courts as a whole. In the matter of judicial decisions in the industrial injuries field, they represent the finest tribunal which we have and conducted by men who get to know a good deal more of the workaday lives of the ordinary people than is always credited to them. They are men who may know of the poverty which people endure, and what it means, and they may make allowances for that. But let us not get mealymouthed about this.

12.30 a.m.

Everybody knows, every practising solicitor knows, that we have on one hand the landlord's judge and, on the other, the tenant's judge. We are all creatures of bias. It may be true—it probably is—that most people on this side of the House have a bias in favour of the tenants. It is certainly true that most people on that side of the House have a bias in favour of the landlords. County court judges are not immune from this bias. I remember a county court judge, whom I greatly respected, a generous hearted man who usually gave a decent judgment in the end, would always exclaim." The tenant undertook the obligation in his contract and now he comes here seeking alleviation and the protection of the Rent Acts."

That is a point of view. That is what a county court judge will say. That is what the Solicitor-General said: "The tenant undertook the obligation. He freely signed the contract. Once having put his name freely to the contract, having entered into the contractual obligation, he must fulfil it. Never mind that he now says the builder was incompetent, or the bank has gone bust, or he has lost his money, or he is out of work, and he cannot carry out his obligation." That is the argument and point of view brought before us tonight.

After it has been said this was a Bill to protect tenants, to some extent based on a Report some of us put in some work on during a couple of years and with a good deal of energy, it is a bit tough to be told that somewhere or another some other report or recommendation was made—not on the Floor of the House—that requires that this provision should be brought in. As my right hon. and learned Friend and my hon. Friend have said, there is no necessity for it. Nothing is easier than to say that if the tenant fails to carry out his obligation the landlord shall be entitled to carry it out for him and charge him in the ordinary way.

I can well understand saying, "If the tenant fails to carry out his obligation because of fraud, or delays carrying it out deliberately even though he has the resources with which to carry it out, he should be held to account." If that were said for this provision I could understand the argument. But that is not being said. What is being said is that once the tenant has signed on the dotted line he must carry out his obligation.

The gravity of this provision, introduced at this late hour, at what we used to call on our leave tickets the hour of 23·59, is that the tenant will say, "I am not taking this obligation on. It is all very well, but knowing the eventualities of life I shall not undertake an obligation of this sort." More and more power will pass to the landlords. More and more it will be left in the hands of the landlords.

Quite seriously and quite firmly I make my own individual protest that, after spending a long time in discussing very important Lords Amendments to a very important Bill, we should have now to pass several pages of more Lords Amendments to this Bill with very little discussion and consideration. I speak with an earnest desire to assist the Government to get this Bill because on the whole, though we on this side do not strongly approve the Bill, we think it is better than nothing. I make my protest, however, that we should be confronted in these circumstances at this late hour with this sort of Lords Amendment, with little opportunity of discussing it, without adequate opportunity of considering the previous ones and of correlating them with this one.

I would like to add my words of protest to the attempted introduction by the Solicitor-General of what I regard as a monstrous provision and at the way it has been done at this late hour. I would echo nearly all of what my hon. Friend has just said.

We gave the very greatest attention to these provisions in the Committee stage, and not a word was said then by the Home Secretary or the Solicitor-General to indicate they had in mind the introduction of penal provisions of this kind to make the position of the tenant infinitely worse than it already is under this Bill. It was not even mentioned in the Committee stage in another place. It was not until the very last moment at the Report stage that this very serious and important provision was inserted in the other place without a word of explanation.

We have had a completely unsatisfactory attempt by the Solicitor-General to explain why he should think it necessary to put this provision in the Bill. We have had very few concessions from the Government about this Bill during its examination upstairs, and I would add my words of protest to those which have been uttered.

I put it to the Home Secretary, who is in charge of this Measure, and who has over and over again said that he wants to do the right and reasonable thing, that here is perhaps his last opportunity of meeting some of the representations that have been made to him from these benches in an attempt to hold the scales of justice fairly between the landlord and the tenant. But if, instead of doing that, he presses the Amendment, then we shall have the scales weighted even more heavily than they already are against the tenant.

This Clause proposes that if a tenant fails to carry out the repairs within a reasonable time, then he loses his rights, he loses his security and can forfeit his tenancy. We have not been told why that is necessary. Why should not the landlord be given equal protection by giving him the right to recover the money if he does the repairs himself? Why is it necessary to give the landlord the right to evict the tenant if he fails, and he may not be responsible in any way, to carry out the repairs?

Will the Home Secretary give his attention to the extraordinarily vague language which is adopted in this Clause? It says the failure which would produce the breach and would entitle the court to terminate the tenancy would arise if the tenant did not carry out his repairs "within a reasonable time." That is a very odd condition in a penal provision of this kind. What is a reasonable time? Who is to decide what is a reasonable time? One knows that in various walks of life and in consideration of different Acts of Parlia- ment that different opinions may be held about what is a reasonable time. This provision has put the tenant completely at the mercy of the county court judge. He may take the view that he still has a reasonable time within which to carry out the initial repairs. Another person might take a different view.

One would have thought that before a penal provision of this kind is to operate, there should be some machinery whereby the landlord could say to the tenant: "I am giving you a reasonable time to carry out repairs and you must have them done within so many days or, so many weeks." Some such notice should be given, but there is nothing of the kind.

As I understand this Amendment, the landlord is to wait until what he thinks is a reasonable time has expired and then seek an order for the tenancy to come to an end where there may be a dispute about whether a reasonable time has expired. From then the provision would have to be determined by the county court judge, and may be determined against the tenant. It seems that this provision is most unsatisfactory and most unfair to the tenant, and it has obviously been hurriedly drafted. It is vague and shipshod, because it was put in at the very last moment by another place. There was no consideration by this House, no consideration in another place and, presumably, no proper consideration by the Government or anyone else. I do not think it fair for this House to be asked to accept an Amendment imposed by the Lords in these circumstances, and I do not think it is just. I invite the Home Secretary, as this is perhaps the last occasion he will have of making some concession to the legitimate claims of tenants, to tell the House he will not press this Amendment.

Question put, and agreed to.

Lords Amendment: In page 56, line 20, leave out "by the landlord."

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This is the 15th of a series of Amendments on initial repairs and applies to paragraph 8 of the Second Schedule, which provides for the making of a record of the state of repair of a dwelling-house. It is directly consequential on earlier amendments in the series.

The Solicitor-General or the Home Secretary—I do not know which of them had the turn to reply—remained supine in his seat when we were all expecting an answer to the previous Amendment. As this Amendment deals with the same series of Amendments, perhaps the Solicitor-General or the Home Secretary has now recovered sufficiently to give us an answer. The arguments addressed on the previous Amendment were sincerely put in the hope that we should at least have some further explanation. I ask the Solicitor-General, if he is in charge of this Amendment, to take this opportunity of giving us now some sort of reply to the arguments addressed against this series of Amendments, and I hope he will do so.

I also feel that the House is entitled to a reply. I think the Home Secretary is lacking in courtesy to the House in failing to answer the subjects that have been addressed to him from this side.

With great respect, the Solicitor-General, who spoke in respect of this Amendment, said it was one of a series of Amendments, and I do not want to go back on the previous Amendment. I will keep myself strictly in order in adducing the reasons why I would protest against the acceptance by the House of this Amendment.

12.45 a.m.

This Amendment is justified on the ground that it is connected with other Amendments which we have already passed. It may well be that we did not have a full and adequate discussion on those, but that is no reason why we should not have a full discussion on this Amendment. For the benefit of hon. Members who have only just joined our discussions, and I am sure are anxious to hear what this important subject is about, may I say that this Amendment seeks to leave out from line 20 of page 56 the vital words "by the landlord." I would like those words to be retained, and I think that paragraph 8 of the Second Schedule will only make sense and be equitable if it is limited to initial repairs being carried out by the landlord.

I can well understand that the object of seeking to eliminate the words "by the landlord" would be to cover the case of initial repairs being carried out by the tenant. When a Bill of this importance to the community, and of this length and prolixity, comes before the House, it should be discussed properly. It is not our fault that we are discussing it after midnight, we have been very patient and have done everything we could to assist the Government in getting the Bill through. When, however, a series of matters comes before the House as a result of Amendments introduced in another place at the last moment and without discussion, we are entitled to an ever greater measure of courtesy from the Government Front Bench than we should receive normally, and to the fullest explanation of the need and justification for these Amendments.

I make these observations, because I want the Home Secretary to have an opportunity of doing himself justice on this Amendment, in view of his failure to do so on the previous ones, and to tell us why, if initial repairs are carried out by the tenant, that should produce the penal consequences with which we so strongly disagree.

Part of the trouble of the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) was that he had not arrived back in the Chamber when I dealt with the first of these Amendments, which was some time ago. I am always anxious to fill up the very few gaps in his wide range of knowledge, and I shall take this opportunity to do so. I would remind him that the general suggestion—as I explained to the House when he was not here—put forward by the Opposition in another place was that it should be left to the court to decide whether the landlord or the tenant should do the repairs. I do not think the hon. Gentleman has appreciated that this is the basic principle on which these 16 Amendments hang.

If he has that point in his mind, he will begin to see illumination breaking out because the suggestion which was made by the Opposition in another place —representing, as it did, not only members of the branch of the legal profession of which I have been a member in my time, but also the resourceful branch of the profession to which the hon. Gentleman belongs—

The right hon. and learned Gentleman is addressing my hon. Friend in rather a condescending manner. I can assure the right hon. and learned Gentleman that my hon. Friend knows the purport of the Amendments, because, to my knowledge, he has discussed them very closely. Perhaps the right hon. and learned Gentleman will bear in mind that other hon. Members on this side were present and heard what the Home Secretary said earlier and that it is not necessary to repeat that part of the argument, which is past history.

I am grateful to the right hon. and learned Gentleman, for that contribution to the debate. I was endeavouring to answer a point on which the hon. Member had appealed to me. As the right hon. and learned Gentleman did not like that part of my answer, I will move to the next point and trust that it will appeal to him and produce a less forbidding rejoinder. Before I gave way I pointed out that the suggestion of the Opposition in another place was that this matter should be left to the court. The matter to be left to the court was the question of who would do the repairs. This was on the basis that the tenant would have the obligation, instead of doing the repairs due under the lease, of doing the lesser repairs, and then would transfer to himself, at his own request, the obligation to do the repairs. He goes to court and says that he wants to do the repairs.

What this provision suggests is that after he has done that there will be an obligation to carry out the repairs. The ordinary result of a breach of obligation of that kind must be some consequence which is not advantageous to the tenant. The argument of the right hon. Gentleman and his colleagues is, "Look at the position of the tenant." I am not being facetious about this; I appreciate that there are hard cases; but that is the logical argument which follows what the hon. Member for Oldham, West (Mr. Hale) has said.

Someone has suggested that the landlord could go to the county court for judgment for the amount of the repairs. On that hypothesis, that would simply put him in the same position. I therefore feel that when a tenant goes to the court and assumes an obligation, and is not able to fulfil his obligation, it is right, as the Solicitor-General has said, that he must be liable, always provided that the county court judge, looking at all the circumstances, thinks that it is reasonable to make an order. Consequently, I do not see why odium has been heaped on my right hon. and learned Friend, and I can add nothing to what he has said.

I hesitate to go over the ground traversed before, but I do not quite follow the logic of the Home Secretary's answer. He appears to be saying that it is quite all right: the landlord is entitled to recover damages where there has been a breach of contract. We follow him there, but then he says that it is right in justice to inflict this penalty on the tenant that he may be turned out of his house if he does not comply with the order and does not pay the damages, or does not do the repairs. Then he says we need not worry about the position of the tenant because the county court judge will see he is not turned out.

It is difficult to see who is helped in those circumstances by this Amendment. Surely the position is quite clear without the Amendment. The landlord is in a position to recover damages. If the tenant is in a bad way financially the county court judge, as he is well accustomed and experienced to to, will fix a payment by instalments, and the tenant will be much more able to pay the landlord what is due to him when he has the certainty of a roof over his head than when this threat is suspended over him.

Question put, and agreed to.

Further Lords Amendment agreed to: In page 56, line 24, leave out subparagraph (2).