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Tenants' Rights, Etc (Scotland) Amendment Bill Hl

Volume 413: debated on Tuesday 21 October 1980

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8.4 p.m.

My Lords, I beg to move that this Bill be now read a second time. Noble Lords will recall the almost interminable discussions we had in June and July about the Tenants' Rights Etc. (Scotland) Bill and the broadly comparable Housing Bill for England and Wales. A number of noble Lords were very much concerned with the question whether those Bills as they then stood took sufficient account of the need to retain in public ownership houses which had been specially adapted at public expense for the needs of the elderly. As we all know, there were substantial discussions in another place.

The outcome of these discussions was that the Government decided shortly before both Houses rose for the Recess that there was merit in the arguments which noble Lords, among others, had brought forward for some extension of the category of houses which were to be excluded in the English Bill from the right to buy provisions. The Government accordingly signified in the other place that they were prepared to have the Housing Act amended to provide for such an extension, and appropriate provision is included in the Housing Act which has recently been brought into operation. By the time these decisions were taken there was no procedural way in which changes could be made to the Scottish Bill. The Government decided, however, on full consideration of the matter that it would be desirable to extend the category of exclusions in Scotland also, even at the cost of requiring an amending Bill to be introduced at a very late stage in the Session. That is the background to the Bill which is before the House this evening.

Noble Lords will recall that the Scottish Act at present recognises two distinct categories of housing which are specially adapted for the elderly. Those houses which are fully sheltered in the sense of having a call system and a resident warden are wholly excluded from the right to buy by Section 1(11)(c) of the Act. In relation to the different category of houses which have substantial adaptations, but where there is neither a call system nor a warden, there is provision in Section 4(4) of the Act for the local authority to exercise a right of pre-emption once the house has been sold to the first tenant purchaser should he subsequently decide to sell.

What this Bill does is to give local authorities the opportunity, in relation to the second category of houses, to seek to refuse to sell in the first place. If they believe that the houses in question are within the category that is defined in the new Section 3A which is being inserted into the principal Act, in other words, houses which have facilities substantially different from those of an ordinary dwelling-house and have been designed or adapted for occupation by an elderly person whose special needs require accommodation of the kind provided, they may apply to the Secretary of State for his authorisation to refuse to sell the houses. This procedure is modelled on the procedure now embodied in the English Housing Act.

We expect that the number of houses affected will be rather more than 6,000. The main category will be those known as amenity houses, in other words, houses which are physically in all respects like fully sheltered houses but lack only the call system and the resident warden. These are houses which have been recognised by departmental circulars as a desirable part of provision for the elderly since 1975, and a number of recommendations as to their design are embodied in the recently revised Part 5 of the Scottish Housing Handbook. My right honourable friend the Secretary of State intends to make clear administratively to local authorities, if this Bill is enacted, that his authorisation may be expected as a matter of routine in response to all applications under the Bill which relate to houses which are beyond argument amenity houses in that recognised sense.

There will also, of course, be a smaller number of houses which have been adapted on an ad hoc basis for the elderly, and the Secretary of State's authorisation is likely to be given in respect of a number of these also. I trust that noble Lords will find this small amending Bill acceptable in that it gives effect to undertakings given in response to concern expressed widely when the principal Bill was going through both Houses.

Clause 2 of the Bill makes a number of minor technical adjustments, most of which come somewhere in the area between the concern of the draftsman and the concern of the printer. I do not think I need say anything about these but I should perhaps mention, in relation to the amendment at Clause 2(e), that after taking advice my right honourable friend and I consider that the reference to "heritable proprietor" in Section 1(11) of the principal Act is satisfactory. In face of representations, however, that it could be misunderstood, and believing that there would be advantage in putting the interpretation of the expression beyond doubt, we have taken the view that we should use the vehicle of this amending Bill to meet these representations. The consequences of the Bill for public expenditure and for public service manpower are minimal and in the circumstances I commend the Bill to the House. My Lords, I beg to move.

Moved, That the Bill be read 2a . —( The Earl of Mansfield.)

8.10 p.m.

My Lords, I think that we should congratulate the Government on keeping a promise that they would bring forth amending legislation as soon as possible. We should further congratulate them on having created a record, in that they have introduced a Bill in one Session and in the same Session they have found it necessary to amend it, and not just as regards that part in respect of which a promise was given, but as regards various other matters.

The fact is that in view of the way in which legislation is now handled, even if we had another five stages for dealing with it we would have another five stages of minor amendments because these days legislation is treated with a rather haphazard concern for accuracy. I was fascinated by the last series of amendments that we discussed to discover that it was inserting a clause to which we were asked to agree on the basis that it was a standard clause. They are even missing out standard clauses in their considerations.

But it is also a tribute to the mismanagement by the Government in another place because it is not willingly that the Government are producing this particular Bill—they are doing so because they were forced to do it. Part of the trouble stems from here because, in its wisdom, your Lordships' House passed an amendment extending exclusions in respect of elderly people in England and refused to pass exactly the same amendment in respect of Scotland. When it went to another place the Government originally planned to throw out the English amendment. They then discovered, of course, that they were lost for time and, your Lordships may remember that on 5th August the House of Commons sat up all night. The Government lost a day's business and there followed negotiations between the Leader of the House and the Minister of the Environment, other people concerned, the Opposition and, of course, even the Lords were drawn into it. As a result the Government changed their mind and, although they did not like the actual amendment that came from the Lords, they decided to put down an amendment of their own. At col. 562 Mr. Heseltine said:
"The Government have considered the amendment and have decided to widen the exclusions so that genuine elderly persons' accommodation is excluded. We shall accordingly invite the House—with your permission, Mr. Speaker, and with that of the House to consider a manuscript amendment to that effect."
Earlier the Leader of the House had made it clear at col. 531:
"If an agreement in principle is reached that Scotland and England should be treated equally in this matter, how that is done becomes a matter of technicalities."
Notice the phrase, it says:
"Scotland and England should be treated equally".
When, at col. 562 Mr. Heseltine was asked by Mr. Hattersley about the Scottish/English position, he said:
"My right hon. Friend the Secretary of State for Scotland has authorised me to say, as regards the Tenants' Rights Etc. (Scotland) Bill, that he will facilitate legislation to make a change along the lines that I have announced".
So we are supposed to be getting virtually equal treatment in England and Scotland. I cannot congratulate the Government on their definition and legislating for equality of treatment.

I do not want to make a long speech because these are matters to which we shall return in Committee. However, I had hoped that we would not have a Committee stage, that the Government meant what they said and were going to treat Scotland and England equally. In England there is no question of it just being for certain elderly people because there the Minister of State must be satisfied that the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and that it is the practice of the landlord to let it only for occupation by such persons. Why then did the Scottish Office not carry out the pledge that was given by the Leader of the House and by the Secretary of State for the Environment, and simply put those words into the amending Scottish legislation. They have not done so. It says:
"This section applies to a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house".
I do not know what an ordinary dwelling-house is. I know what a dwelling-house is because it is defined, but not "an ordinary dwelling-house". I suppose we all think that the house we live in is an ordinary dwelling-house, but all such houses are different and probably ordinary and yet they meet the needs of those who occupy them. I do not know what the words mean. I do not see that they are necessary. However, that is not the end of the matter for it goes on to say:
"and which has been designed or adapted for occupation by an elderly person"
as compared with:
"designed or specially adapted for occupation by persons of pensionable age".
How does one define an elderly person? There is no definition here. So, from that particular point of view I think that it is regrettable that the Scottish Office has run itself into trouble and certainly to my mind has not completely carried out the promise. Certainly it was not given by the Scottish Office. The last person to speak about this was not from the Scottish Office; it was the Leader of the House of Commons and the Secretary of State for the Environment. However, their good faith is at stake here and also the pledge that was given, in my opinion, to Parliament as a whole.

However, we are not finished. Having loaded up this obstacle of:
"substantially different from those of an ordinary dwelling-house"—
they put up the other brick because it says:
"designed or adapted for occupation by an elderly person".
Then there is reference to:
"whose special needs require accommodation of the kind provided by the dwelling-house."
So, there are three hurdles erected which are entirely different and only one of them slightly approaching what was said in the English Bill.

The point is that we gave the Government the opportunity during the Tenants' Rights Bill to put this right and they did not take it. They have pledged to put it right now and this is what they have produced. It really is not good enough. So I thank the Government for having carried out their one pledge to bring in legislation. They have done it, but they have brought in the wrong legislation. I had better warn them; the Scottish Office will not be popular with the Prime Minister, for when this goes to another place, as it must, for Second Reading, Committee stage, Report and Third Reading, it will be held up by quite unnecessary speeches—unnecessary in the sense that they would have been unnecessary if the Government had carried out their own particular pledge.

Then we have the provision that the application from the councils of the housing authorities in England to their Secretary of State is to be made within, I think, one month after service of the application to purchase. One month in Scotland; in England, six weeks—the landlord has a period of six weeks of the service of a notice claiming to exercise the right to buy. Here, in this legislation, which is supposed to be running on all fours with the English legislation, it is one month. I do not know why it is, but the Minister of State at the Scottish Office does not seem to trust the Scottish local authorities. That is there twice, so I hope that the Government will appreciate why I am impelled to table amendments at the Committee stage to bring about this equality of treatment.

I noticed what the Minister of State said about" heritable proprietor". There are all sorts of other little changes—amendments to the Tenants Rights Bill—which have been found to be necessary. They are not all consequential on what we are doing in this Bill. They are just mistakes that have been discovered after all this lengthy process. On the question of the heritable proprietor, am I right in thinking that this proposal is in response to some statements that have been made in Dundee, that they have found a loophole in the Bill? As I understood the Minister, he said that it was not really necessary, but they would include it just in case. That is what he said. Is that related to Dundee and a loophole that they claim to have found? If he had been the chairman of the Conservative Party, he would have got up and congratulated Dundee upon having found the loophole. Of course, it depends on the kind of loophole—whether the loophole is in the Finance Bill or in the Tenants' Rights Bill. However, it is interesting that we have these amendments. We shall have an opportunity to go into them further at the Committee stage.

I am sorry to disappoint the noble Lord, but some noble Lords on the Liberal Benches, some on the Independent Benches, and some on our Benches, with some support from the Conservative Benches, urged the Government to give us the same kind of provision as they gave to England in respect of exclusion of old people's homes. They did not do it. Again, they did the wrong thing. I am sorry to say that they look like doing the wrong thing again, unless we put it right at the Committee stage. In the meantime, of course, we shall let the Second Reading go through.

8.23 p.m.

My Lords, like the noble Lord, Lord Ross of Marnock, I have to welcome the arrival of this little Bill in your Lordships' House, but deplore its niggardly outlines. The noble Lord drew out attention to the pledge given in another place that Scotland and England would be treated equally. As he pointed out, that pledge was given by the Leader of the House of Commons in answer to a Question by my right honourable friend Mr. David Steel. He said, and I quote from column 528 of the Commons Hansard of 6th August, 1980:

"On the Housing Bill, it is vital that Scotland and England should be treated equally in these matters."
I certainly endorse what was said by the noble Lord, Lord Ross of Marnock, about the equal treatment of old people's houses. But one category of house that has been totally left out is the house specially adapted for disabled persons. Yet if we look at the Housing Act 1980, we find in Schedule 1, "Exceptions to Right to Buy";
"The dwelling-house has features which are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons".
This is a totally different kind of house which is included in the English Act and which is not being included in this Bill. It is a very expensive matter for local authorities to adapt houses of any sort for physically disabled persons. They have a duty to keep a certain stock of these available for persons who have to live in wheelchairs and who have other disabilities which require special facilities within the house.

It is obviously ridiculous that these houses should be sold off to people who may not continue to hold them in occupation for physically disabled persons, because expensive concrete ramps may have been installed and expensive bathrooms may have been fitted. It is ridiculous that these should pass out of the housing stock of local authorities, which would then be forced into the position of having to create these houses anew. Very often these houses have been provided for people with exactly the same motives as this Government's in seeking to provide people with the right to buy. They are trying to make someone's lifelong home into a home which they can continue to occupy.

After this has been done, there is no reason why they should have any special privilege to pass the house on to someone else, or if they are unfortunate enough to have to go into other accommodation, why they should specially be able to cash it in. They will have had very special facilities installed at great public expense for them, and I do not think that most of them would ask for those houses to go out of the local authority housing stock; they would want them still to be available for the use and occupation of the disabled. Therefore, it is ridiculous to make these houses available so that they can, in fact, be sold out of the housing stock.

There is yet another category which is perhaps implied in the English Act, although it is not specifically stated in the wording of this little Bill; it is the old person's house which has been placed in a special location. During the Committee stage debate I pointed out how extremely important it was to old people to have available to them houses which are near the centre of the community, where they can easily get to the shops and to the post office to collect their pensions; where they can easily be visited by their relatives, and so forth. These houses may not be extraordinarily houses except in so far as they are one or two-apartment houses, but they have been specially bought, designed and sited by the local authorities so as to provide for this very special human need.

It is ridiculous to say that the occupants of these houses would be disadvantaged in some special way if they were not able to buy the two-apartment house in the centre of town, to which they had been moved—probably from some other house—so as to give them the special advantage of being near the centre of the community. It is a pity that that was not recognised in the drafting of the Bill.

Like the noble Lord, Lord Ross of Marnock, and his colleagues on the Opposition Benches, we, too, shall hope to bring amendments, and possibly to support amendments tabled by the noble Lord, with the object of making a suitable stock of houses for disabled persons, for old people and for the disabled elderly continuously available in every community in Scotland without undue expense and difficulty. That will be our object, and I hope that we shall succeed. If we succeed, we shall be doing no more than helping the Government to honour their promise to treat England and Scotland equally in the matter of housing.

My Lords, I suppose that it was too much to expect an enthusiastic welcome to the Bill from the noble Lord, Lord Ross, though I had hoped for better things from the noble Viscount, Lord Thurso.

If the allegation is that the Government, my right honourable friend or I have in any way resiled or reneged on an undertaking given in another place, I refute it and refute it with some indignation. It is a serious matter to make these allegations and to throw them across your Lordships' Chamber. I was waiting for the allegations to be backed up by some fact or proof. That, of course, has not come about.

It is all very well for the noble Viscount, Lord Thurso, to start talking about other types of housing such as housing for the disabled. If he reads column 562 of the Official Report in another place and if he is aware of the debates that took place, he will know that the Secretary of State for the Environment said that genuine elderly persons' accommodation would be excluded.

The interminable discussions that we had on housing for the disabled in the latter part of July and the early part of August form no basis of the Bill. There was no indication, still less an undertaking, given in respect of them. If the noble Lord is determined to debate the Bill in Committee and to have a substantive Committee stage, I hope that he will not go into avenues which have been debated in considerable detail in your Lordships' House on Second Reading, in Committee, on Report and on Third Reading.

The Bill reflects fairly the undertaking that was given by my right honourable friend. I know that the phraseology that is used in the two Bills is different. It has been different throughout. If I may say so in the absence of my noble friend Lord Bellwin, the wording which has been used in our Scottish Bill is infinitely superior to the wording in the English measure.

I was concerned, as the noble Lord well knows, not to allow him, especially where definitions were concerned, to open the thing up when the Tenants Rights Etc. (Scotland) Bill was passing through your Lordships' House in order that local authorities that are not disposed to obey the law might take advantage of any imprecise definitions to enable them, as I think I said in a rather over-graphic way, to drive a coach and horses through the legislation.

I am going through these matters so that on reflection noble Lords on the Opposition Benches will not find it necessary to have a great Committee stage. Let us see what the alleged differences are between the English and Scottish measures. The noble Lord points to the six weeks or one month in which the local authority, as it were, has to react. I agree that the English Act says one thing and the Bill says another. We must go back to Section 3 of the Act, which lays down the procedures which a local authority may adopt if it wishes to dispute the tenant's right. Therefore, the period of one month fits in harmoniously with Section 3. The fact is that it follows the Scottish pattern in other forms of refusal and not the English. I might say that they do not have the same framework as we do. Nor is the citizen nearly so well informed as to his rights or how he has to set about exerting them.

I say that with some local authorities not far from where the noble Lord lives it will be an exertion rather than an exercise. I do not mean Dundee. Anyway, it does not matter. The framework within which the citizen is going to act is much better laid down in our measure than in the English one. I do not see that that is either here or there. The second point concerns the definitions. Although the wording is different in the two definitions, I say that in the end they mean precisely the same thing. It is necessary to go back to Section 4(4) of the Act.

We are giving the local authorities in Scotland more freedom and more flexibility than they have in England. That is because in this type of housing they have the right not to sell at all. Secondly, they have the right or the duty to sell with a right of pre-emption that they can exert. Thirdly, they have the right to sell with no such restriction. If we were going to define the type of housing word for word in baby language consistent with the English Act, it would mean a false definition which would be totally unjustified.

I hope that on reflection the noble Lord will recognise the wisdom of what I say. I repeat that the wording may be different but that the effect of the definition is the same. It may be that the noble Lord has difficulty in deciding in his own mind what an elderly person is, but the phrase runs through the Act and there is really nothing difficult about it.

An "elderly person" depends upon the circumstances of the case. It is not necessary to have rigid definitions. It is the housing that is the subject at issue, not the person. The third difference between the Scottish and English measures lies in the phrase which is in the English measure but not in the Scottish where the local authority is, as it were, excused from its duty or practice to let the house to the elderly. We have no such provision in Scotland. Therefore, to that extent the Scottish definition is less onerous than the English one.

I see the noble Lord shaking his head in a horizontal manner. What I have said is so whatever he says. I do not think that I can take the matter very further at this stage. I say that within the wording that we have adopted, which runs right through the Act, the Bill substitutes in Section 3A a new definition that will exclude that sort of housing. Instead of making it, as it were, subject to the right of pre-emption, it will remove it altogether from the tenant's right to buy. I can only recommend the Bill to the House and invite your Lordships to give it a Second Reading.

On Question, Bill read 2a, and committed to a Committee of the Whole House.