As you might have noticed, the Housing and Planning Bill had its last day in Committee today in the House of Commons. It was the 15th and 16th (penultimate and final, respectively) sessions. Surely, you might think, this would be the fag-end of the Bill. What controversial material could still fall to be considered? If you had taken that view, then you would be wrong.
Late on Tuesday, the government put down two new clauses and a new schedule (New Clauses 32 and 33, New Schedule 4, available here). These are a very, very big deal.
The amendments will prevent the grant of new periodic secure tenancies (subject to very limited exceptions, mostly to be set out in secondary legislation) and replace them with fixed term tenancies of between 2 and 5 years. These fixed term tenancies largely follow the model of the flexible tenancy, i.e. a right to a review of the length of term, right to review at the end of the fixed term). Succession is also changed so that the spouse or civil partner only succeeds to a five year fixed term tenancy.
This isn’t the place for a line-by-line analysis since I rather suspect the clauses will need substantial amendment and I’m already quite tired. But one point did strike me as worthy of note.
If you are a LA which decides to grant a fixed term tenancy of three years or less, you can now avoid the RTB entirely. You see, the RTB doesn’t arise until you’ve been a tenant for three years (s.119(A1), HA 1985 – England only). So, if you grant for three years or less and then don’t renew it, the RTB can never arise.
The Members of the Housing and Planning Bill Committee put this problem to the Minister earlier today (Hansard isn’t up yet, so you’ll have to watch it online – full disclosure, I’m the housing lawyer mentioned by Dr Blackman-Woods MP) and, bless him, he didn’t really understand the problem he’d created (he was more interested in going on about Frank Field living in a council house – a problem (if it is a problem) which can be addressed by pay to stay, not messing with security of tenure).
This ignorance isn’t entirely surprising. There is no coherent approach to housing policy and the government seems to design policies to contradict itself. moreover, very few people (and obviously not the Minister) remember that one of the main reasons for creating secure tenancies under the Housing Act 1980 was precisely to facilitate the RTB (some authorities threatened to evict anyone trying to claim RTB, hence statutory security was needed). RTB is inherently linked to security of term.
There is a further RTB problem. Even if your LA grants a tenancy of five years so that the RTB has arisen (after the third year) and you exercise it before being evicted at the end of the five years, you will only get the minimum discount. This is because the additional discount (1% p.a. for houses or 2% p.a. for flats) only arises after the fifth year (s.129, HA 1985). So, a five year tenancy which is not renewed means you’ll never get the “length of occupation” discount.
Now, please don’t misunderstand me. I dislike the RTB and would gladly see it abolished. But I rather suspect the government did not intend this outcome. But this mess is all their own fault – if you drop in a major change like this on the last possible day, then of course you’ll do a bad job. Moreover, if you’re going to try a reform like this, you really need to get proper (probably external) advice about how to do it.
The Bill comes back for Report Stage early in 2016. Perhaps by then the government will have thought about this problem. Maybe we could even have some consultation on this spectacularly important change.* Or is that asking too much?
*And the problem that appears to exist with recovering possession of the fixed term tenancies arising on succession – no forfeiture clause in this form of tenancy – see our post here.