Housing Bill — 3 Nov 2004 at 14:30

moved Amendments Nos. 14 and 15:

After Clause 73, insert the following new clause-

"FURTHER PROVISIONS ABOUT RENT REPAYMENT ORDERS

(1) This section applies in relation to rent repayment orders made by residential property tribunals under section (Other consequences of operating unlicensed HMOs: rent repayment orders)(5).

(2) Where, on an application by the local housing authority, the tribunal is satisfied-

(a) that a person has been convicted of an offence under section 72(1) in relation to the HMO, and

(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of a part or parts of the HMO during any period during which it appears to the tribunal that such an offence was being committed in relation to the HMO,

the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).

This is subject to subsections (3), (4) and (8).

(3) If the total of the amounts received by the appropriate person in respect of periodical payments payable as mentioned in paragraph (b) of subsection (2) ("the rent total") is less than the total amount of housing benefit paid as mentioned in that paragraph, the amount required to be paid by virtue of a rent repayment order made in accordance with that subsection is limited to the rent total.

(4) A rent repayment order made in accordance with subsection (2) may not require the payment of any amount which the tribunal is satisfied that, by reason of any exceptional circumstances, it would be unreasonable for that person to be required to pay.

(5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section (Other consequences of operating unlicensed HMOs: rent repayment orders)(5) is to be such amount as the tribunal considers reasonable in the circumstances.

This is subject to subsections (6) to (8).

(6) In such a case the tribunal must, in particular, take into account the following matters-

(a) the total amount of relevant payments paid in connection with occupation of the HMO during any period during which it appears to the tribunal that an offence was being committed by the appropriate person in relation to the HMO under section 72(1);

(b) the extent to which that total amount-

(i) consisted of, or derived from, payments of housing benefit, and

(ii) was actually received by the appropriate person;

(c) whether the appropriate person has at any time been convicted of an offence under section 72(1) in relation to the HMO;

(d) the conduct and financial circumstances of the appropriate person; and

(e) where the application is made by an occupier, the conduct of the occupier.

(7) In subsection (6) "relevant payments" means-

(a) in relation to an application by a local housing authority, payments of housing benefit or periodical payments payable by occupiers;

(b) in relation to an application by an occupier, periodical payments payable by the occupier, less any amount of housing benefit payable in respect of occupation of the part of the HMO occupied by him during the period in question.

(8) A rent repayment order may not require the payment of any amount which-

(a) (where the application is made by a local housing authority) is in respect of any time falling outside the period of 12 months mentioned in section (Other consequences of operating unlicensed HMOs: rent repayment orders)(6)(a); or

(b) (where the application is made by an occupier) is in respect of any time falling outside the period of 12 months ending with the date of the occupier's application under section (Other consequences of operating unlicensed HMO: rent repayment orders)(5);

and the period to be taken into account under subsection (6)(a) above is restricted accordingly.

(9) Any amount payable to a local housing authority under a rent repayment order-

(a) does not, when recovered by the authority, constitute an amount of housing benefit recovered by them, and

(b) until recovered by them, is a legal charge on the HMO which is a local land charge.

(10) For the purpose of enforcing that charge the authority have the same powers and remedies under the Law of Property Act 1925 (c. 20) and otherwise as if they were mortgagees by deed having powers of sale and lease, and of accepting surrenders of leases and of appointing a receiver.

(11) The power of appointing a receiver is exercisable at any time after the end of the period of one month beginning with the date on which the charge takes effect.

(12) If the authority subsequently grant a licence under this Part or Part 3 in respect of the HMO to the appropriate person or any person acting on his behalf, the conditions contained in the licence may include a condition requiring the licence holder-

(a) to pay to the authority any amount payable to them under the rent repayment order and not so far recovered by them; and

(b) to do so in such instalments as are specified in the licence.

(13) If the authority subsequently make a management order under Chapter 1 of Part 4 in respect of the HMO, the order may contain such provisions as the authority consider appropriate for the recovery of any amount payable to them under the rent repayment order and not so far recovered by them.

(14) Any amount payable to an occupier by virtue of a rent repayment order is recoverable by the occupier as a debt due to him from the appropriate person.

(15) The appropriate national authority may by regulations make such provision as it considers appropriate for supplementing the provisions of this section and section (Other consequences of operating unlicensed HMOs: rent repayment orders), and in particular-

(a) for securing that persons are not unfairly prejudiced by rent repayment orders (whether in cases where there have been over-payments of housing benefit or otherwise);

(b) for requiring or authorising amounts received by local housing authorities by virtue of rent repayment orders to be dealt with in such manner as is specified in the regulations.

(16) Section (Other consequences of operating unlicensed HMOs: rent repayment orders)(10) and (11) apply for the purposes of this section as they apply for the purposes of section (Other consequences of operating unlicensed HMOs: rent repayment orders)."

After Clause 73, insert the following new clause-

"OTHER CONSEQUENCES OF OPERATING UNLICENSED HMOS: RESTRICTION ON TERMINATING TENANCIES

(1) No section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO.

(2) In this section-

a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (c. 50) (recovery of possession on termination of shorthold tenancy);

a "shorthold tenancy" means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of that Act;

"unlicensed HMO" has the same meaning as in section (Other consequences of operating unlicensed HMOs: rent repayment orders) of this Act."

On Question, amendments agreed to.

Clause 86 <[i>Grant or refusal of licence]:

moved Amendment No. 16:

Page 58, line 39, leave out "may" and insert "must"

On Question, amendment agreed to.

Clause 94 <[i>Further sanctions relating to unlicensed Part 3 houses]:

moved Amendments Nos. 17 to 19:

Leave out Clause 94 and insert the following new Clause-

"OTHER CONSEQUENCES OF OPERATING UNLICENSED HOUSES: RENT REPAYMENT ORDERS

(1) For the purposes of this section a house is an "unlicensed house" if-

(a) it is required to be licensed under this Part but is not so licensed, and

(b) neither of the conditions in subsection (2) is satisfied.

(2) The conditions are-

(a) that a notification has been duly given in respect of the house under section 62(1) or 84(1) and that notification is still effective (as defined by section 93(7));

(b) that an application for a licence has been duly made in respect of the house under section 85 and that application is still effective (as so defined).

(3) No rule of law relating to the validity or enforceability of contracts in circumstances involving illegality is to affect the validity or enforceability of-

(a) any provision requiring the payment of rent or the making of any other periodical payment in connection with any tenancy or licence of the whole or a part of an unlicensed house, or

(b) any other provision of such a tenancy or licence.

(4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section (Further provisions about rent repayment orders).

(5) If-

(a) an application in respect of a house is made to a residential property tribunal by the local housing authority or an occupier of the whole or part of the house, and

(b) the tribunal is satisfied as to the matters mentioned in subsection (6) or (8),

the tribunal may make an order (a "rent repayment order") requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit paid as mentioned in subsection (6)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (8)(b), as is specified in the order (see section (Further provisions about rent repayment orders)(2) to (8)).

(6) If the application is made by the local housing authority, the tribunal must be satisfied as to the following matters-

(a) that, at any time within the period of 12 months ending with the date of the notice of intended proceedings required by subsection (6), the appropriate person has committed an offence under section 93(1) in relation to the house (whether or not he has been charged or convicted),

(b) that housing benefit has been paid (to any person) in respect of periodical payments payable in connection with the occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed, and

(c) that the requirements of subsection (7) have been complied with in relation to the application.

(7) Those requirements are as follows-

(a) the authority must have served on the appropriate person a notice (a "notice of intended proceedings")-

(i) informing him that the authority are proposing to make an application under subsection (5),

(ii) setting out the reasons why they propose to do so,

(iii) stating the amount that they will seek to recover under that subsection and how that amount is calculated, and

(iv) inviting him to make representations to them within a period specified in the notice of not less than 28 days;

(b) that period must have expired; and

(c) the authority must have considered any representations made to them within that period by the appropriate person.

(8) If the application is made by an occupier of the whole or part of the house, the tribunal must be satisfied as to the following matters-

(a) that the appropriate person has been convicted of an offence under section 93(1) in relation to the house, or has been required by a rent repayment order to make a payment in respect of housing benefit paid in connection with occupation of the whole or any part or parts of the house,

(b) that the occupier paid, to a person having control of or managing the house, periodical payments in respect of occupation of the whole or part of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house, and

(c) that the application is made within the period of 12 months beginning with-

(i) the date of the conviction or order, or

(ii) if such a conviction was followed by such an order (or vice versa), the date of the later of them.

(9) Where a local housing authority serve a notice of intended proceedings on any person under this section, they must ensure-

(a) that a copy of the notice is received by the department of the authority responsible for administering the housing benefit to which the proceedings would relate; and

(b) that that department is subsequently kept informed of any matters relating to the proceedings that are likely to be of interest to it in connection with the administration of housing benefit.

(10) In this section-

"the appropriate person", in relation to any payment of housing benefit or periodical payment payable in connection with occupation of the whole or a part of a house, means the person who at the time of the payment was entitled to receive on his own account periodical payments payable in connection with such occupation;

"housing benefit" means housing benefit provided by virtue of a scheme under section 123 of the Social Security Contributions and Benefits Act 1992 (c. 4);

"occupier", in relation to any periodical payment, means a person who was an occupier at the time of the payment, whether under a tenancy or licence (and "occupation" has a corresponding meaning);

"periodical payments" means periodical payments in respect of which housing benefit may be paid by virtue of regulation 10 of the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any corresponding provision replacing that regulation.

(11) For the purposes of this section an amount which-

(a) is not actually paid by an occupier but is used by him to discharge the whole or part of his liability in respect of a periodical payment (for example, by offsetting the amount against any such liability), and

(b) is not an amount of housing benefit,

is to be regarded as an amount paid by the occupier in respect of that periodical payment."

After Clause 94, insert the following new clause-

"FURTHER PROVISIONS ABOUT RENT REPAYMENT ORDERS

(1) This section applies in relation to orders made by residential property tribunals under section (Other consequences of operating unlicensed houses: rent repayment orders)(5).

(2) Where, on an application by the local housing authority, the tribunal is satisfied-

(a) that a person has been convicted of an offence under section 93(1) in relation to the house, and

(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house,

the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).

This is subject to subsections (3), (4) and (8).

(3) If the total of the amounts received by the appropriate person in respect of periodical payments payable as mentioned in paragraph (b) of subsection (2) ("the rent total") is less than the total amount of housing benefit paid as mentioned in that paragraph, the amount required to be paid by virtue of a rent repayment order made in accordance with that subsection is limited to the rent total.

(4) A rent repayment order made in accordance with subsection (2) may not require the payment of any amount which the tribunal is satisfied that, by reason of any exceptional circumstances, it would be unreasonable for that person to be required to pay.

(5) In a case where subsection (2) does not apply, the amount required to be paid by virtue of a rent repayment order under section (Other consequences of operating unlicensed houses: rent repayment orders)(5) is to be such amount as the tribunal considers reasonable in the circumstances.

This is subject to subsections (6) to (8).

(6) In such a case the tribunal must, in particular, take into account the following matters-

(a) the total amount of relevant payments paid in connection with occupation of the house during any period during which it appears to the tribunal that an offence was being committed by the appropriate person in relation to the house under section 93(1);

(b) the extent to which that total amount-

(i) consisted of, or derived from, payments of housing benefit, and

(ii) was actually received by the appropriate person;

(c) whether the appropriate person has at any time been convicted of an offence under section 93(1) in relation to the house;

(d) the conduct and financial circumstances of the appropriate person; and

(e) where the application is made by an occupier, the conduct of the occupier.

(7) In subsection (6) "relevant payments" means-

(a) in relation to an application by a local housing authority, payments of housing benefit or periodical payments payable by occupiers;

(b) in relation to an application by an occupier, periodical payments payable by the occupier, less any amount of housing benefit payable in respect of occupation of the house, or (as the case may be) the part of it occupied by him, during the period in question.

(8) A rent repayment order may not require the payment of an amount which-

(a) (where the application is made by a local housing authority) is in respect of any time falling outside the period of 12 months mentioned in section (Other consequences of operating unlicensed houses: rent payment orders)(5)(a); or

(b) (where the application is made by an occupier) is in respect of any time falling outside the period of 12 months ending with the date of the occupier's application under section (Other consequences of operating unlicensed houses: rent payment orders)(5);

and the period to be taken into account under subsection (6)(a) above is restricted accordingly.

(9) Any amount payable to a local housing authority under a rent repayment order-

(a) does not, when recovered by the authority, constitute an amount of housing benefit recovered by them, and

(b) is, until recovered by them, a legal charge on the house which is a local land charge.

(10) For the purpose of enforcing that charge the authority have the same powers and remedies under the Law of Property Act 1925 (c. 20) and otherwise as if they were mortgagees by deed having powers of sale and lease, and of accepting surrenders of leases and of appointing a receiver.

(11) The power of appointing a receiver is exercisable at any time after the end of the period of one month beginning with the date on which the charge takes effect.

(12) If the authority subsequently grant a licence under Part 2 or this Part in respect of the house to the appropriate person or any person acting on his behalf, the conditions contained in the licence may include a condition requiring the licence holder-

(a) to pay to the authority any amount payable to them under the rent repayment order and not so far recovered by them; and

(b) to do so in such instalments as are specified in the licence.

(13) If the authority subsequently make a management order under Chapter 1 of Part 4 in respect of the house, the order may contain such provisions as the authority consider appropriate for the recovery of any amount payable to them under the rent repayment order and not so far recovered by them.

(14) Any amount payable to an occupier by virtue of a rent repayment order is recoverable by the occupier as a debt due to him from the appropriate person.

(15) The appropriate national authority may by regulations make such provision as it considers appropriate for supplementing the provisions of this section and section (Other consequences of operating unlicensed houses: rent repayment orders), and in particular-

(a) for securing that persons are not unfairly prejudiced by rent repayment orders (whether in cases where there have been over-payments of housing benefit or otherwise);

(b) for requiring or authorising amounts received by local housing authorities by virtue of rent repayment orders to be dealt with in such manner as is specified in the regulations.

(16) Section (Other consequences of operating unlicensed houses: rent repayment orders)(10) and (11) apply for the purposes of this section as they apply for the purposes of section (Other consequences of operating unlicensed houses: rent repayment orders)."

After Clause 94, insert the following new clause-

"OTHER CONSEQUENCES OF OPERATING UNLICENSED HOUSES: RESTRICTION ON TERMINATING TENANCIES

(1) No section 21 notice may be given in relation to a shorthold tenancy of the whole or part of an unlicensed house so long as it remains such a house.

(2) In this section-

a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (c. 50) (recovery of possession on termination of shorthold tenancy);

a "shorthold tenancy" means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of that Act;

"unlicensed house" has the same meaning as in section (Other consequences of operating unlicensed houses: rent repayment orders) of this Act."

On Question, amendments agreed to.

Clause 115 <[i>Management scheme and accounts]:

moved Amendment No. 20:

Page 83, line 1, at beginning insert "provision".

On Question, amendment agreed to.

Clause 124 <[i>Compensation]:

moved Amendment No. 21:

Page 89, line 17, after "party" insert "in consequence of a final management order"

On Question, amendment agreed to.

Clause 129 <[i>Making of interim EDMOs]:

moved Amendments Nos. 22 and 23:

Page 94, line 37, leave out sub-paragraph (i).

Page 94, line 39, at end insert "and

( ) paragraph (d) does not apply;"

On Question, amendments agreed to.

Clause 130 <[i>Authorisation to make interim EDMOs]:

moved Amendment No. 24:

Page 95, line 11, leave out paragraph (b) and insert-

"(b) that there is no reasonable prospect that the dwelling will become occupied in the near future,"

On Question, amendment agreed to.

had given notice of her intention to move Amendment No. 25:

Page 95, line 21, at end insert ", and

(c) why the dwelling has been unoccupied"

<[i>Amendment No. 25 not moved.]

Clause 132 <[i>Making of final EDMOs]:

moved Amendment No. 26:

Page 97, line 14, leave out paragraph (c) and insert-

"(c) in paragraph 7(6)-

(i) paragraph (c) is to be read as referring instead to Part 4 of Schedule 7, and

(ii) paragraph (d) is to be read as referring instead to paragraph 27(2) of Schedule 7;

(ca) paragraph 7(6) in addition is to be read as requiring the notice under paragraph 7(5) also to contain-

(i) the decision of the authority as to whether to pay compensation to any third party,

(ii) the amount of any such compensation to be paid, and

(iii) information about the right of appeal against the decision under paragraph 34 of Schedule 7;"

On Question, amendment agreed to.

Clause 144 <[i>Meaning of "residential property" and "home information pack"]:

<[i>Amendment No. 27 not moved.]

Clause 147 <[i>Responsibility for marketing: general]:

<[i>Amendment No. 28 not moved.]

Clause 151 <[i>Duty to have a home information pack]:

moved Amendment No. 29:

Page 106, line 15, at end insert-

"( ) That duty does not apply if, and for so long as, the seller determines that the property is to be sold without a home information pack, and in the event the estate agent for the seller is the responsible person, the seller has so informed him."

On Question, Whether the said amendment (No. 29) shall be agreed to?

Their Lordships divided: Contents, 179; Not-Contents, 132.

Debate in Parliament | Historical Hansard | Source |