This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Committee for Social Development
Thursday 3 October 2002
MINUTES OF EVIDENCE
Housing Bill:
Committee Stage
(NIA 24/01)
Members present:
Mr ONeill (Acting Chairperson)
Mr Hamilton
Mr B Hutchinson
Mrs Nelis
Mr M Robinson
Witnesses:
Mr S Baird ) Department
Mr S Carson ) for Social
Mr G Davidson ) Development
The Acting Chairperson (Mr ONeill):
I welcome Mr Stephen Baird, Mr Scott Carson and Mr George Davidson from the Department for Social Development. The Committee will return to the detailed clause-by-clause scrutiny of the Housing Bill, particularly those clauses that were referred for further consideration.
I ask members to read the relevant clauses and paragraphs in the Bill, together with the commentary in the explanatory and financial memorandum and the other supporting papers. The Committee has several options. Before choosing an option, members may wish to seek clarification on the clauses from the Department’s officials.
After we have discussed each clause and the potential for amendments with the officials, the Committee will decide whether it is content with the clause as drafted. Otherwise, it can agree on a potential amendment and request that the Department considers the matter and reports back to the Committee, and, by so doing, it will defer the consideration of the clause. Where an amendment is considered to be appropriate, the Department will be asked whether it is willing to draft it.
Clause 1 (Introductory tenancies)
Mr B Hutchinson:
Clause 1(1) says:
"The Executive or a registered housing association may elect".
Should it not read "shall"?
If one housing association elects to operate an introductory tenancy regime, but another does not, what will the position of the latter’s tenants be? Will it not also run contrary to section 75 of the Northern Ireland Act 1998, in that people will be treated differently where housing is concerned?
The Acting Chairperson:
What is the Department’s view of the use of the word "may"?
Mr Davidson:
The Department’s view is that it should be discretionary at this point, although it expects that the Housing Executive and housing associations will bring in introductory tenancies. There is a common waiting list and a common selection scheme. All social housing tenancies are drawn from the one source. It is conceivable that each landlord who draws from that source might not have introductory tenancies. One reason why it has been left open is that there may be particular instances when it may not be suitable, or a particular association may not want introductory tenancies.
Mr B Hutchinson:
Why would a housing association not want introductory tenancies?
Mr Davidson:
I will give my view. Fold housing associations, which let to elderly tenants, may feel that there is not a great likelihood of elderly tenants indulging in antisocial behaviour, and that is one of the main reasons why introductory tenancies are there.
Mr B Hutchinson:
You obviously do not live in my street.
Mr Davidson:
An introductory tenancy is discretionary in the current draft legislation, rather than a requirement.
Mr B Hutchinson:
If a fold housing association does not have introductory tenancies and Belfast Improved Housing (BIH) does, will it apply to its elderly tenants?
Mr Davidson:
I expect that each landlord will —
Mr B Hutchinson:
You can see where our concern lies. BIH also houses elderly people in bungalows. If BIH operate introductory tenancies, will they apply to every tenant?
Mr Davidson:
Our understanding is that each social landlord will not be able to be selective about which tenants are given introductory tenants and which are not. A landlord will bring in an introductory tenancy regime that will apply to each tenant.
Mr B Hutchinson:
Can you understand our concern?
Mr Davidson:
Yes, but I do not think that it would happen.
Mrs Nelis:
I have major problems with clauses 1 to 7. The introduction of the Bill is very negative. The legislation will establish insecure tenancies, which will be an infringement of people’s rights to housing. Can the Department insert a provision to guarantee a person’s civil right to be housed?
Mr Davidson:
There is conjecture over whether everyone has a right to housing, especially social housing. Certain criteria must be met. The legislation on introductory tenancies is one of a raft of measures to deal with antisocial behaviour. It is not designed to infringe people’s rights, as you would term them. Those intent on meeting their obligations as tenants will hardly notice an introductory tenancy. They will have the right to repairs, the right to compensation — all the rights of a secure tenant.
The purpose of introductory tenancies is to allow landlords to see what the likely behaviour of a tenant might be in the longer term and to deal with antisocial behaviour — for example, before a person becomes a secure tenant, by which time it is difficult for a landlord to deal with the harm and the nuisance being caused.
Mrs Nelis:
If the legislation is about antisocial behaviour, why is it called the Housing Bill? The word "housing" implies that it is about the right to decent housing or the right to grants for housing. "Housing" is a misnomer. Clauses 1 to 17 concern repossession, eviction and denying people their rights.
Mr Carson:
The long title of the Bill explains that it is about a range of measures to deal with housing, such as the conduct of tenants, including antisocial behaviour, grants and other assistance for unfit housing. It is a Bill about housing, but it covers a raft of measures.
Mrs Nelis:
I do not have problems with that part of the Bill. However, the first part of the Bill removes the principle that establishes a person’s right to a house. In other words, it establishes insecure tenancies. Some of the amendments raise that issue, but we have not come to them yet. Will the Department include some sort of assertion that states that people have an absolute right to housing?
Mr Carson:
No one has that right.
Mr Davidson:
The purpose of introductory tenancies takes us back to what most tenants are entitled to, which is quiet enjoyment of their own property. The legislation seeks to ensure that. We must give back to the vast majority of tenants, who are adversely affected by the antisocial behaviour of a minority of tenants, quiet enjoyment of their tenancies.
Mr B Hutchinson:
Mr Chairman, it was remiss of me not to declare an interest, as I am a member of a housing association board. I apologise.
The Acting Chairperson:
You have already declared that interest during the process of consideration of the Bill.
Mr Hamilton, did you want to make a comment?
Mr Hamilton:
I only want to make the observation that people do not have an automatic right to a house.
Mrs Nelis:
In international law they do, but we will not go into that now.
The Acting Chairperson:
Unfortunately, I am in the Chair, and the situation is difficult. I have concerns about the issue of introductory tenancies, and it is not to be confused with a desire to ensure that antisocial tenants are dealt with. That is an attempt to wrong-foot the argument, which is about the right to housing. That right is enshrined in the United Nations Universal Declaration of Human Rights and is also included in the Programme for Government, which we all agreed to in the Assembly. The concept of introductory tenancies does not sit well with that. This is not a semantic argument, but I would be interested to hear the Department’s view on that matter.
The implication of introductory tenancies is that from the time an application is made, the tenant goes through a period of introduction before becoming a full tenant. That applies to everybody, without any criteria being applied. That rests apparently with the judgement of the officer from the local office, or his manager, responsible for the allocation of houses.
Has the Department considered the amendment that deals with the concept of probationary tenancy? Although this is not an argument about semantics, there is a considerable dictionary difference between the words "introductory" and "probationary". I nearly used the word "discretionary" and got into another argument with someone else. The word "probationary", in this context, means that someone is placed, on the basis of evidence, on a probationary tenancy. If that person does not adhere to the conditions of that probation, then the issue of the removal of tenancy arises. With regard to people’s rights, would that not be the preferable way to approach the issue, so as not to abuse the principle of right to housing for all that is enshrined in the United Nations Declaration of Human Rights, and included in the Programme for Government?
Mr Davidson:
The Department’s view is that, in the context of the comments made by the Committee members, probationary tenancies would apply only to those who had already been convicted of antisocial behaviour. The Department would see that as defeating the policy objective. If introductory tenancies had been brought in 10 years ago, then tenants who are now guilty of antisocial behaviour would have secure tenancies, because they did so in the first year of their tenancy. The introductory tenancy tries to ensure that you get some evidence over the first year of a tenancy as to whether the tenant is or is not likely to be sensible and abide by the tenancy agreement. If you do that only for those who have already been found guilty of antisocial behaviour, then people who are guilty of such behaviour for the first time have secure tenancies.
The Acting Chairperson:
You have either misunderstood my point, or I have not made myself clear. My understanding is that probationary tenancy means that in the case of a tenant who is found guilty of an antisocial offence — and evidence of such an offence does not necessarily lead to a legal hearing, and is not just based on the view of the housing officer — the evidence is acted upon, a warning is issued and the probationary tenancy is applied. If the antisocial conduct continues, then that person is removed. What are your views on that? Is there not a major difference between that and applying an introductory tenancy to everybody?
Mr Davidson:
If I were looking at introductory tenancy from a tenant’s viewpoint, I would not feel that I was in any way disadvantaged by it. It does not mean that the landlord does not trust the tenant; rather it is a time when the landlord can determine whether the person is likely to be a decent tenant. Anybody guilty of antisocial behaviour during that time will be dealt with according to the Housing Executive’s normal procedure and, in the meantime, the tenant has all the rights that any secure tenant has. People with introductory tenancies are not disadvantaged when compared to other tenants. They have the same rights during that introductory period, and the intention is to give them a secure tenancy at the end of that year.
Mr Carson:
Probationary tenancy is very akin to the current system where taking away a tenancy and eviction comes at the end of a long train of action. Under the existing legislation, people are visited, mediation takes place, warnings are given about the behaviour, and only at the end of that procedure will the house be repossessed, if that person has not reformed.
The Acting Chairperson:
You may not be aware that when this issue is analysed and stripped down it relates to a fundamental political tenet. Traditional conservatism would declare that all men are evil and must be punished. Therefore everyone is wrong until they prove themselves right. You are trying to do that with the introductory tenancy. That is my view.
Mrs Nelis:
The fundamental difference between introductory tenancies and the current system is that if someone is given an introductory tenancy, their right to security of tenure is removed.
Mr Carson:
I do not disagree with that. In case you misunderstood, I was saying that I do not see much difference between probationary tenancy and the existing system. I accept your point.
Mr Davidson:
The current situation is that people are secure tenants from day one, and that situation may prevent the Housing Executive and social landlords from taking reasonable and immediate action to get rid of the harm and the nuisance some people may cause. A secure tenancy guarantees the person that property, and it is a tortuous route to try to deal with the person and remove the nuisance from people in the vicinity who want quiet to enjoy their secure tenancies. The purpose of this is not to take away people’s rights, rather it is to allow the social landlords to see whether the tenants will prove to be what we regard as decent tenants and if not, then to allow the landlords to do something about the situation, which they cannot do under the current system. This is not just the Department’s view; social landlords, and particularly the Housing Executive, are in favour of this, along with the other measures to deal with antisocial behaviour.
Mrs Nelis:
I have two points in relation to that. First, there is no evidence to suggest that removing a roof from over someone’s head is going to resolve the issue of antisocial behaviour. That will just move the problem elsewhere. In some submissions, and certainly in the evidence given to the Committee last week, the feeling was that introductory tenancies are wide open to abuse. We learned that when the Bill was introduced in England, the landlords, whether they were housing associations or whatever, used it to resolve problems of rent arrears, and that, not antisocial behaviour, accounted for 68% of those who were evicted — although some people might define rent arrears as antisocial behaviour.
Mr Davidson:
There is no intention at present for social landlords to use this legislation as a method of dealing with rent arrears. However, there should be some way in which social landlords could deal with the possibility of tenants who, on the first day of their tenancy, decide not to pay rent. It is not intended that introductory tenancies, if they were introduced, would be used to deal with the problem of rent arrears: there are well-established ways of dealing with that. Introductory tenancies should deal with antisocial behaviour, and rent arrears is not within the definition of antisocial behaviour. However, it does deprive the Housing Executive of funds that it could use for other housing purposes.
The Acting Chairperson:
Since it is suggested that introductory tenancies be applied to Housing Executive and housing associations, why should they not be applied to tenants in private accommodation?
Mr Davidson:
Private-sector landlords have other means of getting rid of antisocial tenants, such as notices to quit, and so forth, and there is no reason why they should need introductory tenancies. It is not provided for in the Bill.
The Acting Chairperson:
If we introduce one set of rules for one sector, we could be questioned under the equality legislation about not introducing the same rule for all sectors?
Mr Davidson:
The private-rented sector is not mentioned in the obligations in section 75 of the Northern Ireland Act 1998. Section 75 deals with other aspects of people, and not the fact that they choose to live in the private-rented sector.
Mr B Hutchinson:
Does the Housing Executive have any statistics on antisocial behaviour? I would guarantee that the private-rented sector has the highest levels of antisocial behaviour, and that is because the private-rented sector has stolen and embezzled money out of the Government for years by creating situations where landlords put all sorts of people into houses knowing what the majority of them were up to — and that continues.
MLAs could produce statistics to show that the majority of problems come from the private-rented sector. With this Bill we are saying that only those people who live in social housing provided by the Government are involved in antisocial behaviour. If we really want to stop it, it must be stopped everywhere, and not just in one sector.
Mr Davidson:
There are other authorities to deal with antisocial behaviour.
Mr B Hutchinson:
It is not working.
Mr Davidson:
With respect, because it is not working does not mean that it should become the obligation to the Housing Executive or housing associations to deal with antisocial behaviour.
Mr B Hutchinson:
Stringent restrictions could be put on the private landlord to do exactly the same thing. You are telling us that we need these laws to deal with the people who live in Housing Executive and housing association houses. If we already had a system that worked, why are we changing it?
Mr Davidson:
We are bringing in extra provisions because the existing provisions have been shown not to work, or to be tortuously slow to deal with the problems.
Mr B Hutchinson:
Could we have the statistics?
Mr Davidson:
I have some figures on the types of antisocial behaviour dealt with by the Housing Executive, but I do not have anything from the private-rented sector.
Mr B Hutchinson:
I am referring to the Housing Executive.
Mr Davidson:
The Housing Executive breaks down antisocial behaviour into 16 categories, ranging from noise levels to criminality, verbal abuse, boundary disputes, vehicles, intimidation, drugs and alcohol. I do not have the figures for the last year, but at the present time the Housing Executive is dealing with 57 cases of antisocial behaviour.
Mr B Hutchinson:
I have a teenage son who likes to play his decks. Is that antisocial behaviour?
Mr Davidson:
Someone in the vicinity may claim that that is antisocial behaviour.
Mr B Hutchinson:
We must be careful about what we mean. If we want to criminalise young people and turn noise from decks and such like into antisocial behaviour, that is fair enough. However, I am sure that many housing officers have teenage sons and daughters who play decks.
Mr Davidson:
The courts currently decide what is defined as nuisance, noise or harm. If the Housing Executive chooses to deal with someone for playing loud music, for example, it will need to be sure that a court will accept that it has acted in a reasonable way in bringing the case to court. We do not ask the Housing Executive to determine what is noise, harm or nuisance. A court will determine whether the behaviour has been antisocial and whether the Housing Executive has a strong and right case to bring to court.
The Acting Chairperson:
An introductory tenant will not be taken to court, will they? Will their tenancy not just be removed?
Mr Baird:
An introductory tenancy could be ended only by court order. The purpose of introductory tenancies is to remove the requirement for the landlord to prove grounds for possession in court. When a landlord currently takes a tenant to court seeking an order for possession, the landlord must prove that the statutory grounds exist and must provide evidence, bring witnesses and so forth. We want to move to the introductory system because of the difficulties involved in that.
When a landlord wants to take an order for possession in relation to an introductory tenancy, he still must go to court and get the order. The difference is that the Bill would require the court to grant the order for possession more or less on demand by the landlord. However, it would be subject to the test of reasonableness; the court could only grant such an order if it felt it was reasonable to do so in the circumstances.
Mr B Hutchinson:
Through research, we have discovered that places such as Germany deal with antisocial behaviour. One of the difficulties is that we are dealing with housing problems that are declared as antisocial behaviour. In the street where I live there are two housing associations, privately owned homes and private-rented homes. If I live in a housing association house on an introductory tenancy and bring someone in who makes noise, I can get kicked out. Other people in the street can do what they want, and there is no law against it.
We are making a rod for our own backs. These are policing problems, and the police should deal with them. We should not see them in the light that you are seeing them in; they should be seen the other way round. Antisocial behaviour is antisocial behaviour, and whether it is in someone’s home does not matter. The police must deal with that, and the legislation should give the police the power to do that. You are turning our housing problems into antisocial behaviour problems.
Mr Davidson:
When the Housing Executive in particular currently deals with antisocial behaviour, it brings the police, local authorities and, if necessary, health and social services personnel to the interview about the nuisance with the complainant. The Housing Executive brings in the various authorities, including the police, to see if there are ways of dealing with the issue, short of having to evict the tenant, which is a last resort. The landlord is not trying to deal with the issue alone.
Mr B Hutchinson:
Mr Davidson has missed the point. There was a Housing Executive strategy several years ago that told people in working-class areas such as the Shankill that 90% to 95% of Housing Executive tenants were no use. It needed people who owned their own homes. It went on a campaign of selling homes. With the Department of the Environment, it also went on a campaign of giving grants to enable people to get low mortgages so that there would be a mixture of tenure.
We live in areas of mixed tenure, and you are saying that this antisocial behaviour measure will apply only to those who live in social housing run by the Housing Executive or a housing association. It should apply to everyone, and the only people who can apply it to everyone are the police. Why are we bringing out laws that affect only one sector and not all sectors? If someone has just bought a home, after a grant from the Department of the Environment enabled them to get a low mortgage, they can partake in all the antisocial behaviour they want and there are no laws to deal with it.
Mr Davidson:
There are authorities to deal with it —
Mr B Hutchison:
The authorities do not deal with it. That is why you are introducing this legislation, is it not?
Mr Davidson:
We are introducing legislation to allow the Housing Executive and social landlords to deal with it better. Unfortunately, it is not a matter for housing legislation if the police or other authorities do not take the action expected by some people.
Mr B Hutchinson:
That is the point I am making; that is why you are making it. The police do not deal with antisocial behaviour on behalf of the Housing Executive; the legislation is being introduced to enable the Housing Executive to deal with it. The police should deal with it.
Mr Davidson:
The police are brought in by the Housing Executive when there are complaints of antisocial behaviour.
The Acting Chairperson:
Clearly, this clause and the other clauses dealing with antisocial behaviour will not find their way through the Committee today. In such circumstances, officers and departmental officials may be asked if the concerns expressed today, together with those expressed in the recommendations from various voluntary and statutory groups, could be submitted to the Minister for possible further consideration and presented to the Committee again in a slightly different format.
Mr Davidson:
I suggest that the Minister should be informed of the view of the Committee as a whole, rather than the views of individuals. Several people have commented, but officials do not know the Committee’s view, for example, on whether introductory tenancies should be brought in or should be at the discretion of landlords. The Committee’s view must be taken to the Minister, who already knows the Department’s views on the Bill’s provisions. It is a question of whether the Committee’s view will make him want to change those.
Mr B Hutchinson:
I am offended by what Mr Davidson has said. I am an elected representative. I am entitled to my view and to give that to the Department. If officials want to start this caper of needing to know the Committee’s view, we will give them that on the day. My authority as an elected representative is being challenged because I spoke. I am a member of the Committee. Not everyone will agree with my views, and I will not always agree with theirs, but that is not the point. Officials are here to solve problems. They do not have the right to make sure that everyone else shares my view, just because they do not like what I have said.
Mr Hamilton:
That is not at all what the gentleman said, Billy.
Mr B Hutchinson:
Tom, you should let the gentleman speak for himself.
The Acting Chairperson:
Members should address comments through the Chair, please.
Mr Hamilton:
Mr Davidson asked for the Committee’s view. I assume that he meant a formal view, rather than reporting that "Mr Hutchinson said this; Mrs Nelis said that."
Mr B Hutchinson:
You tell me how we will get that. Going round the table does not give the view of the whole Committee.
Mr Hamilton:
We can take a vote.
The Acting Chairperson:
Members, the only way to make progress is to have the discussion through the Chair. At this stage it is not a matter of taking a vote. Views have been expressed that reflect deep concern. That is sufficient for me, as temporary Chairperson of the Committee, to ask Mr Davidson to enquire of the Minister whether those concerns can be reflected, and to convey his response. We have not even begun to examine other amendments, because we are in a state of concern. Tom Hamilton is perhaps indicating some support for introductory tenancies.
Mr B Hutchinson:
That is the first I have heard of it.
The Acting Chairperson:
If so, he may want to put it on record. However, I have heard no one speak in favour of the proposals. Everyone who has spoken has given a genuine cause for concern.
We must proceed. We could sit here for the rest of the afternoon discussing this clause. Is there any way in which this might be processed with a greater degree of acceptability and with the removal of some of the concerns expressed by Committee members?
Mr Davidson:
I understand, and I apologise to Mr Hutchinson. There was no intention on my part to do what he suggested I did.
After attending Committee meetings we are required to tell the Minister what happened. The start of this discussion was about whether introductory tenancies should be discretionary or mandatory. That has still not been resolved. We then discussed whether introductory tenancies were a good thing at all, regardless of whether they were discretionary or mandatory. We need to talk about what the provisions are doing. The provisions are introducing an introductory tenancy regime. In order to tell the Minister the Committee’s views, we need to know whether the Committee, as a body, likes introductory tenancies, but does not like some of the ramifications, or wants introductory tenancies to be statutory rather than discretionary, as they currently are. We need some view on that, regardless of members’ individual views, although we are quite happy to take those.
The Acting Chairperson:
You do not know what to say to the Minister to reflect the view of the Committee.
Mr Davidson:
I could tell him that there were a variety of views and that there were discussions about antisocial behaviour and introductory tenancies in general, but that there are concerns about them. There does not seem to be broad support, but I do not know the degree of support. Do we suggest to the Minister that the Committee wants some of those provisions to be changed, either to make introductory tenancies mandatory or to retain their existing discretionary nature? Alternatively, do some individual aspects need to be changed to reflect the Committee’s concerns? I have not got that picture.
The Acting Chairperson:
That being the case, all we can do is defer consideration of that clause until we, as a Committee, decide what we want and see if we can come to a decision. There may need to be a majority decision in order to progress. My intention was simply to see whether the Minister might be prepared to accept a recommendation that could go some way to meeting some of the Committee’s concerns. Everyone is anxious to help with the antisocial behaviour problem. There is an opportunity to do something through housing, but there is more to antisocial behaviour than simply dealing with tenancies, as Mr Hutchinson explained. There is a heck of a lot more to the issue.
Mr B Hutchinson:
Irrespective of what happens in this building, the people who end up picking up the pieces of antisocial behaviour are the elected representatives in this room. People come to my door at 2.00 am to tell me that people are being antisocial. People come to my constituency office day and daily. I live in the area that I represent and am therefore on call 24 hours a day, seven days a week. It is in my interests to have such provisions, but the difficulty is that we are not going about it the right way. People need to learn lessons.
Mrs Nelis:
I want to reiterate that the entire Committee is concerned about antisocial behaviour. We are all actively trying to deal with it in our own constituencies, through multi-agency approaches and other methods. If this legislation is allowed to go through, removing a person or an entire family will not deal with antisocial behaviour. It will also be an infringement of equality legislation, the Good Friday Agreement and the UN Declaration of Human Rights. The Minister must address those concerns and respond to them.
Mr Davidson:
The Committee will know that all provisions of the Bill have already been proofed from an equality and a human rights perspective. There were no concerns at departmental level, or from the Northern Ireland Human Rights Commission or the Equality Commission for Northern Ireland.
Mr B Hutchinson:
Is there an equality mechanism? I assume that the people who will be most affected by introductory tenancies will be female lone parents. Will there be a way for those people to be tracked to ensure that they are not being discriminated against because they are lone parents and female?
Mr Davidson:
The Housing Executive, under its equality obligations, at a point when it introduces a new policy — and if this is to go through legislation and be considered for implementation by the Housing Executive, it will be a new policy — is required to equality proof and human rights proof that policy.
Mr B Hutchinson:
Do you accept that one sector of society will be affected?
Mr Davidson:
I would wait for the equality impact assessment to be carried out by the Housing Executive to see the range of people who may or may not be affected. I do not want to hazard a guess. The equality impact assessment will do that job in a structured way.
The Acting Chairperson:
We need to defer consideration until the Committee has an opportunity to thrash out a more pointed response to the Minister.
Clause 1 referred for further consideration.
Clause 2 referred for further consideration.
Clause 4 referred for further consideration.
Clauses 6 to 8 referred for further consideration.
Clause 10 referred for further consideration.
Clauses 12 to 14 referred for further consideration.
Mr Carson:
Will the Committee write to the Minister?
The Acting Chairperson:
The Committee will examine the situation and then decide what to do.
Mr Carson:
I thought that you might want us, as officials, to take some action in the meantime.
The Acting Chairperson:
The Committee is agreed that further consideration needs to be given to those clauses.
Clause 17 (Extension of ground of nuisance or annoyance to neighbours, &c.)
Mrs Nelis:
I raised concerns about clause 17 at our last meeting. The clause proposes to extend the grounds for repossession to nuisance. However, the term "nuisance" is not defined. Can the officials define that for the Committee?
The clause refers to nuisance caused by tenant’s visitors. There is a proposal to extend that to the locality, not only a particular house but also to people who have committed an arrestable offence. I have problems with that clause. A barking dog was used as an example of a nuisance. Could the grounds for repossession be extended because a dog is barking and the tenancy situation is introductory?
Mr Carson:
The term "nuisance" has been used for many years in legislation, and it is not defined. Once something in legislation is defined, we are trapped into that. If a definition of "nuisance" is type-bound in primary legislation, it can take a long time to change. Therefore it is left up to the courts to interpret a nuisance in individual cases and to make sure that it is a nuisance. A dog barking occasionally would not be considered as a nuisance.
Mrs Nelis:
Will the courts make the decision on repossession?
Mr Carson:
The courts decide whether what took place was a nuisance and whether the house can be repossessed on those grounds.
Mr B Hutchinson:
Does the Housing Executive take hidden disabilities such as behavioural problems in young children into consideration?
Mr Davidson:
As I understand it, the Housing Executive will take into consideration all circumstances that might be material to the case. Repossession is the tail end of a long process. For example, a case about a dog barking might be resolved through the Housing Executive’s mediation service, without the need for a court case. If the case involves a disabled person or someone who has mental health problems, the Housing Executive’s processes should take account of that. As part of the second stage of the process for dealing with nuisance, it engages with other agencies, such as the police, local councils and social services. I imagine that the health, or mental health, problems of the people involved would be brought to the Housing Executive’s attention.
Mr B Hutchinson:
I read some statistics recently, which said that in north Belfast there was an increase in the number of children between the ages of eight and 12 who suffer from behavioural problems, which is a medical condition. It is a growing problem. Could all those people find themselves in court?
Mr Baird:
I would like to reassure Mr Hutchinson that section 22(3) of the Disability Discrimination Act 1995 makes it illegal to seek to evict a person on the basis of a disability. The Housing Executive would fall foul of the law if it attempted such action.
The Acting Chairperson:
Mr Davidson outlined a list of categories of antisocial behaviour. How would the Bill’s provision affect that list?
Mr Davidson:
It is unlikely that it will affect the list at all. Until now, landlords have been able to deal only with problems caused by tenants. The provision will extend the grounds for repossession to visitors who engage in antisocial activities. It includes the locality, not just the house. I suspect that it will not impact upon the Housing Executive’s categories of nuisance. There are already 16 categories, and it is difficult to see how they could be extended. I did not give the Committee the full list of categories, but I can do so.
The Acting Chairperson:
That would be useful.
Mr Davidson:
The categories are: noise; poor maintenance of gardens; criminality; verbal abuse; harassment; damage to property; pets and animals in general; racial abuse; vehicles; intimidation; drugs; alcohol; boundary disputes; business nuisance; public nuisance and rubbish.
Mr B Hutchinson:
Does the Department not consider eviction to be as bad a problem as homelessness? The Committee has recently tried to deal with homelessness; now it is dealing with evictions. Will the legislation not add to the problems that the Assembly is trying to solve?
Mr Davidson:
It might add to the numbers of people who seek rehousing, but the Housing Executive will not have a duty to house them. Therefore they must find accommodation elsewhere. The purpose of the legislation is to ensure that the ordinary tenant, who is not causing any harm, has the right to enjoy his or her property. To do anything else would leave the nuisance in the same place.
Mr B Hutchinson:
Therefore the nuisance is moved on to annoy someone else?
Mr Davidson:
The social landlord will not move them on. The social landlord will take over possession of the property, if that is what the process leads to. Where the person finds housing, is a matter for him or her, although the Housing Executive will provide advice and point him towards other landlords who may provide accommodation. The Housing Executive will not have a duty to house them in social housing.
Mr B Hutchinson:
You can see the pattern.
The Acting Chairperson:
I presume they would be categorised as intentionally homeless.
Mr Davidson:
Yes. They would be regarded as contributing to their own homelessness and would not therefore be entitled. We deal with that issue elsewhere in the Bill.
The Acting Chairperson:
How long would people be categorised as intentionally homeless?
Mr Davidson:
There is no time limit.
The Acting Chairperson:
Could it be for ever?
Mr Davidson:
People could ask to be put on the housing register once again. It would be for the Housing Executive to decide whether the person would be a suitable tenant at that point. There is certainly no time limit in legislation for a person who is guilty of antisocial behaviour and is evicted on the basis of that.
Mrs Nelis:
I am concerned about that, because it puts the onus on tenants to be accountable for their visitors. You cannot expect people to exercise that type of influence on those who visit their homes. For instance, I am an elected representative, and there is an alcoholic in my neighbourhood who visits me regularly. He is a nuisance to my neighbours because he shouts all over the place. I bring him in and give him a cup of tea. I am glad that I own my own house; I would probably get evicted if this legislation goes through. This is very serious.
Mr Davidson:
The Housing Executive would have to consider whether it were in the circumstances to expect a tenant to exercise control over a visitor. There may be situations in which tenants may be deemed able to control a visitor, but others when they are not. Ultimately, if the matter goes to court, that court will consider whether it were reasonable for the Housing Executive to lay that responsibility on a tenant.
The Acting Chairperson:
I raised issues about the clause on a previous occasion. Mr Carson, you mentioned people who suffered from physical and sexual abuse and who wanted to get away from their abuser. You indicated that very clear guidelines would be given in the advice notes. I cannot remember exactly what you said at the time.
Mr Carson:
I cannot remember either.
The Acting Chairperson:
If someone pursued by an abuser — perhaps a wife who is suffering physical abuse — is re-housed and is visited at midnight by a husband demanding whatever he considers to be his rights, and creating merry hell in the mean time, what would the Housing Executive’s position be?
Mr Carson:
Clearly, the wife would not be penalised.
The Acting Chairperson:
You have said to me that that is clearly the case. However, is there not a case for making sure that such guidance is included in any advice notes accompanying the legislation? Advice should be given so that people in an office somewhere do not use their position to perpetrate an injustice because they have a grudge against somebody.
Mr Davidson:
I recall that point, but I do not recall that we had to follow it up. I suspect that the Housing Executive will draw up its own internal guidance to ensure that each of its district offices deals with this matter consistently. I am sure that it will issue guidance as to the circumstances in which it might or might not be reasonable to hold a tenant accountable for the conduct of a visitor.
I suspect that the Housing Executive would recognise the situation you mentioned and would not seek to evict an abused person on the basis that the abuser had caused a problem. I suspect that the executive would see that such a case would never see the light of day in court. Ultimately, if the Housing Executive were to be told that that such advice had to go into their guidance, then the Department already has powers of direction in existing legislation. It could direct the Housing Executive not to seek to deal with the tenant under the provisions. I suspect that we will never have to direct the Housing Executive in that regard.
The Acting Chairperson:
It might reassure some of us.
It is perhaps an exaggerated case, although I know of occasions when it has happened. However, in all situations, there could be areas of grey, which may be less difficult to decide. The tenant may still be disadvantaged due to the activities of someone else — presuming that the tenant would receive a sympathetic ear.
Mr Davidson:
If you want confirmation from the Housing Executive about how they would deal with that scenario, then we will get that. However, there are other scenarios that the Housing Executive will have to deal with. Its processes ensure that anything that a district office considers doing, with regard to eviction or taking people to court, goes through a headquarters process, which will look at the reasonableness of the individual case against previous cases, or as an individual case. It would have to be sure that a court would consider the Housing Executive’s conduct to be reasonable. I am sure that I can get that confirmation from the Housing Executive. However, it is dealing with only one scenario; others will come up, which are not catered for in detail, but will fall into the normal process and category of nuisance and antisocial behaviour.
Mr B Hutchinson:
It is of concern that we do not have consistency across the board. However, with regard to Mr Davidson’s description of the process involving headquarters, how would that happen for housing associations?
Mr Davidson:
I do not know.
Mr B Hutchinson:
Therefore we are treating people differently again.
Mr Davidson:
We are not. Housing associations will have ways of dealing with antisocial behaviour.
Mr B Hutchinson:
I understand that. However, how do we get all 35 housing associations to do the same, and how does everyone receive the same justice? There is bound to be a case for natural justice. Someone will take people to court over those matters.
Mr Davidson:
Given that social housing and tenancy is off the central list, when certain policies come into play there is more requirement than ever that housing associations are treated in the same way. The Department’s housing association branch usually directs the associations in how to deal with issues such as rent arrears and so on. I am not party to those instructions because I do not work in that area of the Department. However, directives and instructions are regularly issued to housing associations with regard to how the Department feels they should deal with particular issues. The difficulty is how to make sure that every housing association deals with the case in exactly the same way, because another association may have dealt with the same case. The Department does not have that role.
Mr B Hutchinson:
My argument is that the Housing Executive should have consistency, as it is responsible for all district offices. The housing association branch of the Department is responsible for the housing associations. Therefore I assumed the answer would be that they would come to the Department.
Mr Davidson:
Housing associations also have a complaints procedure, and people can ultimately go to the Department, if it is not involved at the landlord level. Therefore if cases came within that scope, the Department would be involved. However, that requires the process to have gone through the Housing Executive’s complaints procedure first. If a person continues to feels aggrieved at how they have been treated by an association, then the Department can become involved. At present, that is in place, and it can deal with antisocial behaviour, if that is the background to the complaint.
The Acting Chairperson:
Some of those concerns might have been addressed if you had included the section that was in the earlier piece of legislation — the strategic role of the Housing Executive over all housing.
Mrs Nelis:
The proposed breadth of that clause appears to be in breach of article 1 of protocol 1 of the European Convention on Human Rights, and that is a cause for concern. The Bill has already been before the Human Rights Commission, which has suggested an amendment to that effect.
Mr Davidson:
The whole Bill has been proofed for equality and human rights by the Department. The provisions themselves do not introduce inequalities or deny human rights. If the Bill is passed and the provisions come into play, the Housing Executives and social landlords will be required to proof the policies for human rights and equality before they are implemented. The Bill may appear to be in contravention of some rights, but equality and human rights impact assessments are the mechanisms that will determine whether it raises any equality or human rights issues. It is all conjecture until the policies are invoked, at which point the landlord or Housing Executive is required under equality and human rights legislation to carry out impact assessments.
The Acting Chairperson:
We will now look at the some of the listed amendments suggested to clause 17. Disability Action has proposed the first amendment, to ground 2(a). Disability Action is concerned as to the measurement to be used in an assessment of a person "causing or likely to cause a nuisance or annoyance". It believes that it is crucial that hidden disabilities, which can be manifest in behavioural changes, are taken into account. Disability Action recommends that this clause be amended to ensure that action to possess a tenancy cannot be taken against a person where the behaviour in question is the result of a disability.
The answer from the officials appears to indicate that that is covered by other legislation. Is that correct?
Mr Baird:
Yes.
The Acting Chairperson:
Why is Disability Action concerned — does it know about section 22(3) of the Disability Discrimination Act 1995?
Mr Baird:
I expect that Disability Action does know about it. I am not sure why it feels that the Disability Discrimination Act does not provide adequate protection — the Department feels that it would.
Mr Carson:
I suspect that Disability Action sees housing legislation as separate from disability legislation, and that housing legislation stands in isolation from all other legislation. However, that is not the case. Housing legislation must obey all equality legislation, including disability legislation.
The Acting Chairperson:
Does the Committee dismiss that amendment?
Members indicated assent.
The Acting Chairperson:
We now move to the amendment proposed by the Housing Rights Service, which suggests that this clause be amended to ensure that action to possess a tenancy cannot be taken because of the likely behaviour of a visitor within the locality; or because the tenant, household member or a visitor has been convicted of an arrestable offence.
Mr Davidson:
The Department believes that that amendment is contrary to the policy objective, which is to ensure that we can evict people on that basis.
Mr Baird:
The proposed amendment reflects the position in existing legislation, and so there would be no benefit to it. The Department would not look on that favourably, because it fails to provide the Housing Executive with the facility to seek possession when a visitor in the locality has caused nuisance, or because the tenant has been convicted of an arrestable offence. We feel that those provisions are necessary and that is why they have been included in the Bill.
The Acting Chairperson:
Could I have the views of Committee members?
Mrs Nelis:
Is it on the Housing Rights Service amendment?
The Acting Chairperson:
The Housing Rights Service has tabled a possible amendment to be considered that is different from the original. The Bill states that:
"The tenant or a person residing in or visiting the dwelling-house-
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of -
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii)an arrestable offence committed in, or in the locality of, the dwelling-house."
Mr Baird:
The proposed amendment is very similar to the law as it stands at the moment, rather than bearing any similarity to the proposal in the Bill. The amendment would not move us on from the existing legal position.
Mrs Nelis:
I am content with the amendment.
The Acting Chairperson:
Are members content to accept the amendment? Two members appear to be in favour of the amendment, and two are against. One member does not want to discuss the proposition.
Mr Davidson:
The purpose of this, and other proposals, in the legislation is to strengthen and build on what we already have should they be found not to be working, or are a torturous route. We are inclined to strengthen the arm of the landlords to deal with the issue. The corollary of it is that if we do not do what we are currently doing, social landlords will not have sufficient powers to be able to deal with the issue. We are trying to provide them with those powers.
The Acting Chairperson:
We understand the point very well. Thank you for your additional help.
Question proposed:
That the Committee recommend to the Assembly that the clause be amended as follows: on page 9,
delete lines 21–28
and insert
"(a) has been guilty of conduct causing nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of using the dwelling house or allowing it to be used for immoral purposes".
- [Mr B Hutchinson]
Question put.
The Committee divided: Ayes 3; Noes 2.
AYES
Mrs Nelis, Mr ONeill, Mr Hutchinson
NOES
Mr Robinson, Mr Hamilton
Question accordingly agreed to.
The Acting Chairperson:
I take it that you are not prepared to run with the draft.
Mr Davidson:
We take the Committee’s views back to the Minister. The Minister decided that this was the policy he wanted. The Committee is not in favour of it, but it is the Minister’s decision as to whether he runs with it.
The Acting Chairperson:
A series of other amendments has been suggested. The first of these is from the Equality Commission for Northern Ireland, and it outlines the recommendation that the Bill
"(a) makes it clear that racist harassment or abuse constitutes ‘ill-treatment’ in clause 22(1) and (2); and
(b) takes account of the definition of a ‘racist incident’ as contained in the Macpherson report."
Noted below that submission is the full title of the Macpherson report:
"‘The Stephen Lawrence Inquiry. Report of an Inquiry by William Macpherson of Cluny’. London, TSO."
The Equality Commission recommends:
"amending this clause to ensure that action to possess a tenancy cannot be taken:
(a) because of the likely behaviour of a visitor within the locality; or
(b) because the tenant, household member or a visitor has been convicted of an arrestable offence."
Do you have a response to that?
Mr Davidson:
The Department’s view is that "nuisance or annoyance" would cover something as serious as racial harassment and abuse, and an amendment intended to emphasise that is unnecessary.
The Acting Chairperson:
I suppose that the second part does not apply now, does it? We have amended that.
Mr Davidson:
The Department’s view is that we should not emphasise racial harassment as being nuisance or annoyance. To specify a definition of a racist incident would be superfluous. We know the Macpherson definition. A definition in this legislation would be superfluous because "nuisance or annoyance" would include racial harassment.
The Acting Chairperson:
Are Members content with that? "Nuisance or annoyance" covers racial abuse. The Department’s view is that this recommendation is not necessary as racial abuse is already covered.
Mrs Nelis:
I do not agree with that at all. We have to be clear, and the words "nuisance or annoyance" would not cover the Macpherson definition of racist incidents. I propose that we accept the Equality Commission’s recommendation.
The Acting Chairperson:
Would you like to run through that again? I am not sure that —
Mr Davidson:
I understand the point made. I just want to take you back to the categories of antisocial behaviour and nuisance that I classified earlier. Racial abuse is already included. The Housing Executive currently accepts racial abuse as a form of antisocial behaviour and nuisance. The amendment is not required. We do not see the need to isolate racial harassment as a form of nuisance and annoyance. It is already dealt with under those categories. To identify one type could lead to a necessity to specify everything that is an annoyance.
The Acting Chairperson:
I understand your point. However, Mrs Nelis’s point is that Macpherson is clear about what he says. Are you aware of how the Housing Executive views the Macpherson report when it deals with racial incidents, if it must?
Mr Davidson:
I am not aware of that. I only know that it deals with racial abuse as nuisance and annoyance. I do not know whether it accepts the Macpherson definition.
The Acting Chairperson:
Perhaps it is more a question of regulation than law. Do you understand the point, Mrs Nelis?
Mrs Nelis:
Yes.
The Acting Chairperson:
It is a regulatory matter. We must establish whether it is using the Macpherson definition. It is important to use that definition.
Mrs Nelis:
It gives clarification; it is absolutely clear.
The Acting Chairperson:
It would be an interesting issue for us to explore. Perhaps we could find out about that.
Mr Davidson:
If you want some confirmation that the Housing Executive recognises the Macpherson definition when it deals with racial abuse, we can obtain that information. I cannot say that it will inform us that it does use that definition but —
The Acting Chairperson:
I understand. We could deal with the Housing Executive directly on what we regard as the definition of racism, according to Macpherson. It would be between the Housing Executive and us whether the executive uses or ignores it.
Mr Davidson:
You will appreciate that the Housing Executive probably uses its own legal services in most of these matters, and it would have good advice on what the law demands.
The Acting Chairperson:
If we are able to get that kind of assurance, are members content to reject that amendment?
Mrs Nelis:
As long as the definitions are clear, and nuisance is not defined as a barking dog. It must be clear.
You said that the Housing Executive would have difficulty with that. What is the problem with inserting it as an amendment?
Mr Carson:
The difficulty arises if a racial harassment amendment is inserted, and someone is abused because of his or her disability. Someone could notice that the legislation covers racial harassment but not disability harassment. Other harassment could be included; for example, religious discrimination. When one aspect of harassment is described, it leads to a danger of excluding so many others. It is better to leave that interpretation to the courts.
The Acting Chairperson:
That is where the Housing Executive defines what constitutes harassment.
Mr B Hutchinson:
There is no reason why the Committee cannot agree that clause, because it is for the Housing Executive to interpret racial harassment. The clause is fine and should be agreed. There was a similar situation with the Street Trading Bill when we realised that we could not include everything in the Bill, but that there were other pieces of legislation that it all tied into and that there were guidelines for councils. We should try to convince the Housing Executive that it should use the Macpherson definition of racial harassment. However, we should not delay agreement of the clause. That will not matter, because it is for the Housing Executive to determine the interpretation.
The Acting Chairperson:
If it will satisfy Mrs Nelis and Mr Hutchinson, that could be included as a recommendation in the Committee’s report. We can dismiss the amendment.
Members indicated assent.
The Acting Chairperson:
Shelter Northern Ireland said that the clause should make it clear that the offence is only an offence if it is linked to the visit.
Mr Davidson:
The Department feels that it would be unlikely that the Housing Executive would seek to use those powers if the arrestable offence had nothing to do with the visit; for example, if it was committed elsewhere or was unrelated to that particular locality or tenant.
The Acting Chairperson:
Has that not already been covered through the other amendments that have been accepted? The word "offence" is not mentioned.
Mr B Hutchinson:
Those are all interesting. How will the Housing Executive get round the problem of touts who work for the police? Currently, we cannot get people arrested who are selling drugs from Housing Executive houses.
The Acting Chairperson:
Shelter’s suggestion is already covered by the amendment that we have adopted.
Lower Antrim Road Regeneration Initiative commented on antisocial behaviour. Have you any comment on that?
Mr Davidson:
Our analysis was that that group welcomed the increase in empowerment of housing authorities, but had reservations about eviction leading to homelessness and felt that eviction should be a last resort. The group’s statement is a comment rather than a request for an amendment. Eviction is a last resort. We have already discussed the potential for creating homelessness through eviction. However, the Housing Executive would have no duty to do anything about such homelessness.
The Acting Chairperson:
Can we dismiss that?
Members indicated assent.
The Acting Chairperson:
The Northern Ireland Council for Voluntary Action (NICVA) recommends that the clause should be amended to ensure that the tenancy cannot be taken away because of the likely behaviour of a visitor or because the tenant, household member or visitor has been convicted of an arrestable offence. We have taken the Housing Rights Service amendment. To a large extent, that covers that recommendation. Can we dismiss that?
Members indicated assent.
The Acting Chairperson:
The Council for the Homeless in Northern Ireland (CHNI) recommended that clauses 17 to 20 be deleted. Their other option is for clause 17 to be amended to include a new ground 2 in schedule 3 of the 1983 Order on nuisance or noisy neighbours. The recommended new ground reads:
"The tenant or a person residing in the dwelling-house
(a) has been found guilty of conduct causing nuisance to a person residing in the locality
(b) has been convicted of using the dwelling-house or allowing it to be used for immoral or illegal purposes."
Mrs Nelis:
That is the same as the one we already examined.
The Acting Chairperson:
That suggestion is covered by what we have already done, but we are entitled to ask Mr Davidson’s view.
Mr Davidson:
Our view is that it does cover what has already been done. It would be contrary to the policy objective for me to give a position.
The Acting Chairperson:
Members, shall we dismiss that one since it has been covered by the other amendments? We cannot accept the other amendment if we decide to accept the deletion; therefore, that too must be dismissed. Do we agree that the proposal to delete clauses 17 to 20 be dismissed?
Members indicated assent.
The Acting Chairperson:
Do we agree that the CHNI proposal to amend clause 17 be dismissed?
Members indicated assent.
The Acting Chairperson:
The next concerns the recommendation of the Northern Ireland Human Rights Commission.
"The Northern Ireland Human Rights Commission considers that the proposed breadth of the extension of the ground of nuisance or annoyance to neighbours and others may be so wide as to breach the tenant’s right to property under Article 1 of Protocol 1 of the ECHR. In the present draft, [ground 2A (b)] (ii) would allow a person to lose their tenancy simply because any visitor had committed any arrestable offence nearby."
We removed "arrestable offence" and have dealt with its substance in our amendment.
Mr Davidson:
There is a note that "immediate vicinity" is preferred to "locality"; however, the problem with "locality" and "immediate" still exists regarding the area in which the problem was caused. The same point was made by other consultees. We want the proposals as they stand.
The Acting Chairperson:
We have adopted the other amendment, which used "localities". Shall we dismiss this one?
Mr B Hutchinson:
George Davidson made the point that everything must still be checked. Does that not cover it for now? The Speaker has to send this and to make sure —
The Acting Chairperson:
Presumably. Do we agree that this be dismissed?
Mrs Nelis:
I am not too happy about dismissing it, and I am not sure why.
The Acting Chairperson:
This concerns the gap between what we have already done in taking the other amendment on board, and the use of "immediate vicinity" instead of "locality".
Mrs Nelis:
The other amendment reflects the law as it stands. Am I correct? The Human Rights Commission drew attention to the fact that it may breach article 1 of protocol 1.
Mr Carson:
It may breach it. That does not mean that it does. As George Davidson said, legal advisers were content.
Mrs Nelis:
If there is a breach I am sure that someone will challenge the existing law.
The Acting Chairperson:
Do we agree to dismiss it?
Members indicated assent.
The Acting Chairperson:
The final recommendation, from Oaklee Housing Association, is:
"under ground for possession relating to arrestable offences, to include such instances even where there has not been a conviction, but where the "offence" and disturbance has warranted calling the PSNI."
Do we agree to dismiss that? That is asking for a noose.
Members indicated assent.
The Acting Chairperson:
That concludes our consideration today.
26 September 2002 / Menu / 8 October 2002