PART 7
PUBLIC LAW TEAM
TEAM MEMBERS[1]
Government Legal Service
Richard Percival (Team Manager)
Helen Carr, Eleanor Cawte, Charlotte Crilly,
Elizabeth McElhinney, Raymond Youngs
Research Assistants
Mike Atkins, Helen Brimacombe,
Ed Kirton-Darling, Richard Turney
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Professor Martin Partington
Commissioner
Renting homes
7.1 Renting Homes was published in November 2003.[2] The creation of a wholly new tenure regime has turned out to be a major undertaking. A final report and draft bill is expected to be published in August 2005.
Resolving housing disputes
7.2 Last year we reported progress towards our undertaking a project on the resolution of housing disputes. In May 2004, we were asked by DCA
To review the law and procedure relating to the resolution of housing disputes, and how in practice they serve landlords, tenants and other users, and to make such recommendations for reform as are necessary to secure a simple, effective and fair system.
7.3 Both the Commission and DCA were concerned that we should go beyond considering the narrow issue of whether courts or tribunals should resolve such disputes. The starting points should be the problems that people encounter with housing, and how they can be resolved.
7.4 In taking this broad approach, we needed to understand the general policy environment relating to problem and dispute resolution. In July 2004 the Commission brought together officials from DCA, the Office of the Deputy Prime Minister and the Home Office. The meeting provided useful insights into the broad thrust of Government thinking. Of particular importance was DCA's developing policy on the need for more user-focused services. This was demonstrated in the White Paper on the proposed Tribunals Service,[3] published the day after the meeting. Besides emphasising that users should come first, it also stresses that all dispute resolution should be proportionate; and that there should be a focus on improving initial decision making, rather than relying on complaints or redress systems to correct errors.
7.5 To understand better the nature and scope of people's housing problems, work began with a review of existing research and an examination of relevant official statistics. But, to get a better "feel" for the issues, we assembled a small group of front-line housing advisers. This "expert working group" has been meeting since the summer of 2004, and we record our gratitude to those involved. Conversations with this group focused on the inter-relationship between housing and other problems, including debt, family breakdown, benefit problems, the treatment of special needs/community care and discrimination.
7.6 In September 2004 we also held a seminar for about 50 people including district judges, ombudsmen, officials, people from the voluntary sector and from landlords and tenants' groups. Feedback at the seminar stressed the importance of taking a broad view of housing problems. Issues raised ranged from the need for early diagnosis of the nature of problems and the importance of services like mediation and debt counselling, to the role of ombudsmen and the need for a local focus for services.
7.7 We have had a number of other discussions with academics, practitioners, advisers and others. A small research exercise has been commissioned to throw light on the experience of tenants involved in court proceedings.
7.8 A consultation paper will be published in 2005.
Housing: ensuring responsible renting
7.9 In the Renting Homes report we recommended that we should be asked to undertake two further projects: on promoting landlord responsibility; and on promoting responsible occupier behaviour. The focus of the first was to be on ensuring that landlords complied with their obligations under the rental agreements we proposed in Renting Homes. The second was principally about the control of anti-social behaviour by occupiers in the private rented sector.
7.10 The projects were initially conceived of in terms of their subject matter – anti-social behaviour in one case, breach of the terms of the agreement in the other. However, in both cases, the problem to be addressed is how compliance with legal responsibilities can be secured.
7.11 As our thinking developed, the similarities between the two became clearer. Following discussions with ODPM, we decided that they could best be considered together as part of the same project. Accordingly, work on both aspects will go forward as a single project, as part of our Ninth Programme of Law Reform[4].
7.12 The terms of reference are:
(1) To review the relevant housing law, and proposals for reform of the law, and to make recommendations in relation to:
(a) the appropriate legal framework necessary to promote and secure compliance by both landlords and occupiers with their existing or proposed legal obligations;
(b) the procedures available to landlords, occupiers and affected third parties in relation to such compliance, with particular regard to preventing or remedying anti-social behaviour; and
(c) such provisions of the criminal law as may be necessary to reinforce the above.
(2) To consider the extent to which the principles and procedures available in connection with anti-social behaviour by rental-occupiers should also apply to similar behaviour by owner-occupiers.
7.13 The terms of reference enable the Commission to consider both the law as it currently is, and as it might develop should the proposals in Renting Homes be introduced.
7.14 There already exist a wide variety of mechanisms designed to promote good landlord and occupier behaviour. These include: local authority landlord accreditation schemes, local authority tenant accreditation schemes, and private sector industry self-regulation schemes. But these have grown up piece-meal, often without any legislative backing. Our project will, for the first time, provide the opportunity for developing proposals for a coherent regulatory approach for the operation of the rented housing market. In taking the project forward, we will be drawing on the considerable literature on regulation, and considering its application in the housing context. We have already established links with academics working on these issues.
7.15 Since July 2004, the Law Commission has had an agreement with the Welsh Assembly Government regulating the relations between the Commission and the devolved institutions. The agreement provides that a project will be a joint project where (among other factors)
the project is likely to consider matters in relation to which powers have already been devolved to the National Assembly for Wales to a significant extent.
7.16 Housing is one of the areas in which the National Assembly has primary policy responsibility. This project has therefore become the first in which the Welsh Assembly Government is recognised, jointly with ODPM, as the lead Government body/department.
7.17 Our aim is to publish a consultation paper in the summer of 2006.
Remedies against public authorities
7.18 During the process of consultation leading up to the Ninth Programme, our attention was drawn to the way in which the law was developing in relation to monetary remedies where public bodies had acted improperly. It was argued that this was unsatisfactory. At present, public law does not, in general, enable the citizen to claim damages against a public body, save where there is a breach of the Human Rights Act or European law. If damages are sought, the citizen must make a claim using principles of private law. It was suggested that this could lead to inconsistency of outcome. Further, seeking to extend the boundaries of liability in negligence might fail to achieve a reasonable balance between public and private interests – the public interest in good administration and the private interest in fair compensation where things had gone wrong. To assist us in considering the desirability of a project to consider these issues, we published a discussion paper in October 2004, and convened a seminar in November 2004.
7.19 At the seminar,[5] it was argued that the focus on monetary remedies was too narrow. Many questioned whether awarding monetary compensation was necessarily the best way of making amends for the effects of maladministration. Often, money was not what the wronged citizen wanted. Further, awards to individuals could undermine the ability of public bodies to improve standards of administration. Court action was very expensive, not just to bring, but also to defend, and it was hard to argue for increasing levels of public expenditure on litigation. At the same time, procedural bars prevented, for instance, ombudsmen from dealing with cases where the courts were involved. A project that could be seen as merely creating new liabilities for public bodies to pay compensation was not likely to find favour. On the other hand, there was a case for creating more transparent means for citizen redress. It should be an integral feature of any reformed system of redress that it should enable feedback to be given to service providers.
7.20 We concluded that a scoping study could help us to clearly delineate a possible project in this area. A proposal to this effect is contained in the Ninth Programme. We will publish a scoping study around the end of 2005.
Public health
7.21 During the consultations on the Ninth Programme, it was put to the Commission that we should undertake law reform work on public health. Following discussion with interested parties, it appeared that a valuable law reform exercise could address the law relating to contagious and infectious diseases. The law, contained largely in the Public Health (Control of Disease) Act 1984, which was itself a consolidation of previous legislation, appeared outdated and unsuited for modern social conditions and scientific understanding of disease. We therefore suggested to the Department of Health that we be asked to undertake a scoping exercise. The Chief Medical Officer concluded that this would not be appropriate. As a consequence we did not pursue the idea. In the Ninth Programme, however, we recommended that the Government should seek to reform the law in this area either directly or through some other agency acting on its behalf.
Publication of local authority inquiry reports
7.22 In February 2000 Sir Ronald Waterhouse published the results of the inquiry he chaired into abuse of children in North Wales. He was concerned that there might be circumstances where local authorities might feel unduly constrained by threat of legal action or loss of insurance cover from making public the results of inquiries conducted by them, or on their behalf. He recommended that we look at the legal issues surrounding the publication of local authority reports.
7.23 Our consultation paper[6] concluded that there were three elements to the resolution of the difficulties Waterhouse had identified: an Agreement to be drawn up by the insurers and the local authorities, a Code of Practice for the conduct of local authority ad hoc inquiries, and possible legislative reform for defamation. We focussed on the last of these.
7.24 In our final report,[7] published in July 2004, we made two principal recommendations: a new defence to claims in defamation, and a new statutory power of inquiry for local authorities.
7.25 First, we recommended that there should be a new statutory defence available to local authorities in defamation actions in certain circumstances. Where a local authority makes public a report of an ad hoc inquiry or of an Overview and Scrutiny Committee inquiry into a failure in local authority services, the authority should be able to rely on a defence to any claim in defamation so long as either the publishing authority is satisfied that the inquiry and report were fair, or they were in fact fair. If the authority is not satisfied that the inquiry and report were fair, or it fails to take those reasonable steps necessary to check and they were not fair, then the new defence should not be available, and nor should the existing common law defence of qualified privilege which would otherwise be available.
7.26 Secondly, we recommended that principal local authorities should have a new statutory power to establish an inquiry which would itself have power to apply to the High Court for an order compelling a witness to give evidence to the inquiry. The initiative would lie with the local authority in setting up the inquiry and with the inquiry to ask the court for an order; whether the order was in fact made would be subject to the decision of the High Court. This would achieve a balance between enabling democratically elected bodies to account to their electorate for failures in performance through an effective inquiry, but without putting powers of compulsion in the hands of a non-judicial body.
7.27 We made this recommendation because there is currently a gap in the system. If witnesses will not co-operate with a local authority ad hoc inquiry, and there is no inquiry instituted by central government, then those immediately affected and the public in general will never have a full account of how things went wrong.
7.28 Local authority special inquiries would help the government to meet its duties under the European Convention on Human Rights, and under the European Charter of Local Self-Government. The response of the Government to these recommendations is awaited.
