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Housing and Regeneration Bill

moved Amendment No. 114CA: 114CA: Schedule 10, page 195, line 35, at end insert— ““(4) Omit subsections (5) and (5A).”” The noble Baroness said: We come to an important but complex change that the Government want to make. Clause 298 and Schedule 10 deal with the issue of tolerated trespassers. The provisions in Schedule 10 will prevent the creation of further tolerated trespassers in the future and will remedy the position for existing tolerated trespassers. We would be forgiven for not knowing what tolerated trespassers are and I shall come to that in a minute. These provisions received widespread support in the responses to the consultation paper on tolerated trespassers which was published by the Department for Communities and Local Government last August. Landlords and housing and legal professionals who responded to the consultation strongly supported remedying the situation for future tolerated trespassers and existing tolerated trespassers, not simply those who have complied with the terms of a possession order, provided that landlords are protected from liability for damages. Let me explain briefly why this change is necessary. Tolerated trespassers are people who have lost their status as tenants after the court has granted the landlord a possession order, but who remain in the property, either by agreement with the landlord or by further order of the court. In the vast majority of cases, they are people in social housing. Our statistics suggest that at least 250,000 to 300,000 people could fall into this category. Being a tolerated trespasser causes serious problems for tenants and landlords alike. In the first place, neither landlord nor tenant can rely on the provisions in the relevant housing Acts or the terms of the tenancy agreement. For the tenant, possibly the most serious consequence is that no succession will be possible on death. For the landlord, problems include uncertainty about entitlement to annual increases in rent and about whether tolerated trespassers should be allowed to vote in stock transfer and tenant management ballots. We want to put that right for the future and to help existing tolerated trespassers. Part 1 of Schedule 10 will ensure that in future where a person is subject to a possession order, unless they voluntarily move out, they will retain their tenant status until the court bailiff evicts them. Part 2 of Schedule 10 will restore tenancy status to existing tolerated trespassers by creating a new tenancy from the date that the Bill comes into force. I stress that the Government's aim is to provide as far as possible that landlord and tenant are in the same position as they would have been had the tenant not become a tolerated trespasser and that neither are disadvantaged by the changes. So it is important to clarify that restoring tenancy status to tolerated trespassers will not affect their landlords' rights to ask the court to order eviction where this is appropriate. In most cases it is at the court's discretion whether to do so and these discretionary powers are not changed by our proposals. Our proposals mean that in future people who live in social rented housing will maintain their rights as tenants until they leave their homes and landlords will no longer face the confusion and uncertainty which has been caused by the development of the tolerated trespasser doctrine for the past 20-odd years. These provisions will resolve the contradictions in the current law to make it consistent with the wide discretionary powers that Parliament gave to the courts to protect tenants. We are also introducing minor amendments to the tolerated trespasser provisions in Schedule 10 and consequential amendments to Schedule 14 which deals with repeals. I shall briefly outline the most important of those amendments. They seek to tighten up and clarify the existing provisions, rather than to expand them. In particular, Amendments Nos. 114CD, 114CE and 114CF clarify the territorial divide between England and Wales. The tolerated trespasser doctrine is a complex area of law and we have in several instances added delegated powers to make further provision if the need should arise. Paragraph 25 provides that these powers are exercisable in England by the Secretary of State and in Wales by Welsh Ministers. My officials have been working closely with colleagues in the Welsh Assembly Government and will continue to do so, so that as far as possible the position in England and Wales continues to be the same. Nevertheless, we want to avoid a situation whereby, if the order-making powers are ever exercised differently, a dispute may arise as to whether the English or Welsh rules apply in a particular case. So Amendments Nos. 114CD and 114CE clarify what is meant by England and Wales in this context and provide that that is determined by where the dwelling house which is the subject of the possession order is situated. I fear that that has begged the question of what happens with those properties which straddle the border between England and Wales. Although that situation is likely to be rare, it makes sense to provide for it in the Bill to give certainty and obviate the need for further interpretation by the courts. We consider that the most sensible approach would be to provide that a cross-border property will be deemed to be in England or in Wales depending on the country in which council tax is paid. That will always be a question of fact, because each cross-border property will already be within a local authority's area for the purposes of council tax, and each local authority is wholly within Wales or England. Amendments Nos. 114CA and 114CB amend Schedule 10(3) and (8) by inserting two new subsections. Those remove from the Housing Act 1985 and the Housing Act 1988 two very similar sets of subsections which assist the resident partners of tolerated trespassers. As we are getting rid of tolerated trespassers for the future, we believe that those provisions are now redundant. Under the new proposals, the court's discretionary powers and the tenancy will end together when the possession order is executed. Where partners or ex-partners with occupation rights remain in the property after the tenant has departed, they will be able to ask the court to exercise all relevant powers so long as the tenancy continues, and will not need to rely on the provisions. Amendment No. 114CC amends Schedule 10(20). Part 2 of Schedule 10 will restore tenancy status to existing tolerated trespassers by creating a new tenancy from the date on which the provisions come into force. Paragraph 20 provides that the possession order and other court orders made in respect of the possession proceedings will apply as far as practicable to the new tenancy. This amendment clarifies that paragraph 20 applies only to those court orders which are in force on the commencement date. Amendments Nos. 117JA to 117JD, 117QA and 117ZDA make consequential amendments to Schedule 14, which deals with repeals to existing legislation in the light of those changes. I beg to move. On Question, amendment agreed to.