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Housing Law Making Powers Shelter Cymru

Housing Law Making Powers Shelter Cymru. Marie Navarro Editor Wales Legislation Online, Cardiff Law School and Legal Consultant www.wales-legislation.org.uk. Devolution and the Law. Understanding who has legal authority to make laws for Wales: There are different types of laws

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Housing Law Making Powers Shelter Cymru

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  1. Housing Law Making PowersShelter Cymru Marie Navarro Editor Wales Legislation Online, Cardiff Law School and Legal Consultant www.wales-legislation.org.uk

  2. Devolution and the Law • Understanding who has legal authority to make laws for Wales: • There are different types of laws • Made by different bodies • Devolution means more law makers for Wales • GOWA 2006 created new types of laws

  3. Division Primary/Secondary Law • Primary Legislation is made by Parliament or Legislatures • Secondary Legislation is made by ExecutiveBodies under primary law: • Powers given in Acts, EU designation Orders, or Assembly Measures or under the Prerogative for UK Government Ministers and Welsh Ministers to make laws. • Division was the basis for Executive Devolution until 2007

  4. Who makes Law for Wales ? • Primary Legislation • Westminster and National Assembly for Wales • Acts and Measures • Secondary Legislation • Central Government and WAG • Regulations and Orders, etc. 4 main law makers for Wales

  5. GOWA 2006Legislative Devolution • Split of the old executive Assembly in two • Consequent distribution of powers between • WAG inherited the executive powers (secondary legislation) • Assembly given NEW legislative powers (primary legislation) • But Central government and Westminster still retain primary and secondary law functions

  6. Rule: Limited Competence WAG: Executive powers: Old Assembly powers – Acts, TFOs, EU, SIs New powers- Powers under Measures, Acts, TFOs, EU, SIs Assembly: Legislative powers - Schedule 5: Orders in Council (LCOs, conversion) Acts Executive powers in Acts (Very limited) Sources of powers for Wales

  7. WAG Regulations Orders Guidance Directions Rules Codes of Practice Consent Scheme Authorisation Proposes some LCOs, and some Measures Assembly (Approves) LCOs Measures Who is doing what?

  8. WAG’s Executive Powers

  9. Building Act 1984 (C. 55) Commonhold and Leasehold Reform Act 2002 (C. 15) Children (Secure Accommodation) Regulations 1991 (1505) Consumers, Estate Agents and Redress Act 2007 (C.17) Defective Premises Act 1972 (C. 35) Housing Act 1996 (C. 52) Housing Associations Act 1985 (C. 68) Housing, Grants, Construction and Regeneration Act 1996 (C. 53) Homelessness Act 2002 (C. 7) Housing and Regeneration Act 2008 (c.17) Housing (Right to Manage) Regulations 1994 (SI 1994/627) Hill Farming (Cottages) (England and Wales) Regulations 1954 (SI 1954/670) Housing Act 2004 (34) Landlord and Tenant Act 1927 (C. 36) Landlord and Tenant Act 1954 (C. 56) Landlord and Tenant Act 1985 (C. 70) Landlord and Tenant Act 1987 (C. 31) Leasehold Reform Act 1967 (C. 88) Leasehold Reform, Housing and Urban Development Act 1993 (C. 28) Local Government and Housing Act 1989 (C. 42) Mobile Home Act 1983 (C. 34) Party Wall etc. Act 1996 (C. 40) Polish Resettlement Act 1947 (C. 19) Protection from Eviction Act 1977 (C. 43) Public Audit (Wales) Act 2004 (c.23) Rent Act 1977 (C. 42) Rent Charges Act 1977 (C. 30) Rating (Empty Properties) Act 2007 (c.9) Home Energy Conservation Act 1995 (C. 10) Housing Act 1980 (C. 51) Housing Act 1985 (C. 68) Housing Act 1988 (C. 50) Housing Executive Powers (33)

  10. Executive powers WAG’s summaryfrom explanatory notes to the Affordable Housing LCO • 4.2    The Welsh Ministers already have devolved to them significant executive powers and secondary legislative powers across a wide range of legislation relating to housing. The key legislative provisions which relate to the Order are as follows: • Caravan Sites and Control of Development Act 1960 4.3    This Act deals with licensing of caravan sites, and provision of sites for Gypsies and Travellers. • Housing Act 1985 4.4    This Act (among other things) describes the Local Housing Authorities (which are, in Wales, County Councils or County Borough Councils), and their duties. The Act also deals with the provision of housing accommodation, the disposal of land held for housing purposes, the Right to Buy and defines secure tenancies. • Housing Associations Act 1985 4.5    This Act confers a number of general functions, relating to housing associations, on the Welsh Ministers. • Housing Act 1988 4.6    This Act governs rented accommodation including assured tenancies granted by private landlords (including housing associations and Registered Social Landlords). It also legislates in respect of housing associations. • Local Government Finance Act 1992 4.7    This Act replaced the Community Charge with the Council Tax. There are substantial secondary legislation-making powers under the Act and the devolution of these gives the Welsh Ministers powers to make significant amendments to the council tax regime.

  11. Executive powers (cont.) • Housing Act 1996 4.8    This Act deals with the registration and regulation of Registered Social Landlords, the disposal of land by them, the payment of Social Housing Grant and the Right to Acquire for tenants of Registered Social Landlords. The 1996 Act also deals with social housing allocations and homelessness. The Welsh Ministers already have executive powers in all these areas.Local Government Act 2000 4.9    Section 93 of this Act empowers the Welsh Ministers to provide grants to local authorities to fund, amongst other matters, housing-related support services. • Homelessness Act 2002 4.10  This Act mainly amends the Housing Act 1996 in relation to homelessness. It also places duties on local authorities and others in relation to formulating and publishing local homelessness strategies. • Local Government Act 2003 4.11  Section 87 of this Act empowers Welsh Ministers to require Local Housing Authorities to submit Local Housing Strategies. This power has been used in the development of Affordable Housing Delivery Statements in Wales. Section 88 similarly empowers the Welsh Ministers to require the submission of Housing Revenue Account Business Plans; these have been used by the Assembly Government to scrutinise local planning to meet the Welsh Housing Quality Standard for social housing stock. • Housing Act 2004 4.12  Section 225 of this Act places a duty on local authorities to undertake an accommodation needs assessment for Gypsies and Travellers within the authority's area and to plan for identified needs. Section 226 provides that the Welsh Ministers may issue guidance regarding the duty.

  12. Importance of subordinate legislation • Comes in all sorts and shapes • Main source of law in the UK (and Europe) • Most matters are already the subject of subordinate legislation

  13. Assembly’s Legislative Powers

  14. GOWA’s New Terminology • The Act/ GOWA = Government of Wales Act 2006 (c.32) • Schedule 5 of the Act = lists Fields of competence under the interim system of devolution (before the Assembly becomes a Parliament) • Fields = Policy areas in Schedule 5 – eg agriculture, education • Matters = specific areas of legislative competence - eg school curriculum, school inspections • Orders in Council = Orders made by the Queen with the advice of Her Privy Council - LCOs are one form of Orders in Council. • Legislative Competence Orders or LCOs: = proposal for Parliament to delegate its legislative competence to the Assembly in a matter or several = authority granted to pass primary legislation in a matter • Measures = legislation drafted and passed by the Assembly = equivalent to Acts of Parliament made in Wales by the Assembly

  15. Field 1: agriculture, fisheries, forestry and rural development Field 2: ancient monuments and historic buildings Field 3: culture Field 4: economic development Field 5: education and training Field 6: environment Field 7: fire and rescue services and promotion of fire safety Field 8: food Field 9: health and health services Field 10: highways and transport Field 11: housing Field 12: local government Field 13: National Assembly for Wales Field 14: public administration Field 15: social welfare Field 16: sport and recreation Field 17: tourism Field 18: town and country planning Field 19: water and flood defence Field 20: Welsh language Fields of Competence

  16. Currently • Field 11: housing • Matter 11.1 The provision of automatic fire suppression systems in new residential premises. In this matter “new residential premises” means— (a) premises newly constructed for residential use; (b) premises newly converted to residential use; (c) premises converted to use as one or more new residences by subdivision of one or more existing residences; and (d) premises converted to use as one or more new residences by amalgamation of one or more existing residences. Matter inserted by The National Assembly for Wales (Legislative Competence) (Housing) (Fire Safety) Order 2010 SI. 2010 No. 1210

  17. Affordable Housing LCO No1 Field 11: Housing Matters 11.1 inserted by LCO No 5 2007- Proposal Matter 11.1 Disposal by a social landlord of the following— (a) a dwelling-house within the meaning of Part 5 of the Housing Act 1985; (b) a dwelling within the meaning of section 63 of the Housing Act 1996. Interpretation of this field In this field “social landlord” means any of the following— (a) a county or county borough council; (b) a development corporation established by an order made, or having effect as if made, under the New Towns Act 1981; (c) the Commission for the New Towns which continues in being by virtue of section 35 of the New Towns Act 1981; (d) a housing action trust established under section 62 of the Housing Act 1988; (e) a housing association within the meaning of section 5 of the Housing Act 1985; (f) a housing trust within the meaning of section 6 of the Housing Act 1985; (g) a housing co-operative within the meaning of section 27B of the Housing Act 1985; (h) an urban development corporation established section 135 of the Local Government, Planning and Land Act 1980; (i) the relevant authority within the meaning of section 6A of the Housing Act 1985; (j) the relevant authority within the meaning of section 56 of the Housing Act 1996.

  18. Matter 11.1 Disposal by a social landlord of land held or used for housing purposes. For the purposes of this matter, a disposal of land held or used for housing purposes includes, in particular, a disposal of land to which any of the following applies— (a) a provision of Part 2 of the Housing Act 1985; (b) a provision of Part 5 of the Housing Act 1985; (c) a provision of Chapter 2 of Part 1 of the Housing Act 1996; (d) a provision of Chapter 4 of Part 1 of the Housing Act 1996. Interpretation of this field In this field “social landlord” means any of the following— (a) a county council or county borough council in Wales; (b) a development corporation established by an order made, or having effect as if made, under the New Towns Act 1981; (c) a housing action trust established under section 62 of the Housing Act 1988; (d) a housing association within the meaning of section 5 of the Housing Act 1985; (e) a housing trust within the meaning of section 6 of the Housing Act 1985; (f) a housing co-operative within the meaning of section 27B of the Housing Act 1985; (g) an urban development corporation established under section 135 of the Local Government, Planning and Land Act 1980; (h) the Welsh Ministers; (i) a social landlord registered under Chapter 1 of Part 1 of the Housing Act 1996; (j) a provider of social housing registered under Chapter 3 of Part 2 of the Housing and Regeneration Act 2008; (k) a manager appointed under Chapter 4 of Part 1 of the Housing Act 1996; (l) a person to whom a grant has been paid under section 27A of the Housing Act 1996.”. (2) In Part 2 of Schedule 5 to the 2006 Act (general restrictions), after paragraph 2A(TFaFT) insert— “Housing 2B.—(1) A provision of an Assembly Measure cannot abolish any of the following— (a) the right to buy under section 118 of the Housing Act 1985; (b) the preserved right to buy under section 171A of the Housing Act 1985; (c) the right to acquire under section 16 of the Housing Act 1996. (2) For the purposes of this paragraph, neither of the following is to be taken to be abolition of such a right— (a) suspension of the right in particular circumstances; (b) modification of the right so that it ceases to apply in relation to particular classes of dwelling. (3) In this paragraph “dwelling” means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it.”. (3) In Part 3 of Schedule 5 to the 2006 Act (exceptions from Part 2), after paragraph 7A(TFaFT) insert— “Housing 7B.—(1) If sub-paragraph (2) applies, Part 2 does not prevent a provision of an Assembly Measure from abolishing any of the following— (a) the right to buy under section 118 of the Housing Act 1985; (b) the preserved right to buy under section 171A of the Housing Act 1985; (c) the right to acquire under section 16 of the Housing Act 1996. (2) This sub-paragraph applies if both the Welsh Ministers and the Secretary of State consent to the provision.”. Affordable Housing 2nd version

  19. Matter 11.2 Social housing providers. Matter 11.3 Relevant social housing bodies. Matter 11.4 Tenure of rented social housing and other arrangements under which social housing is provided. Matter 11.5 Disposals of— (a) social housing, (b) land held or used for the purposes of, or in connection with, social housing, and (c) land to which a provision of any of the following enactments applies— (i) Part 2 of the Housing Act 1985(a); (ii) Part 5 of the Housing Act 1985; (iii) Chapter 2 of Part 1 of the Housing Act 1996(b); (iv) Chapter 4 of Part 1 of the Housing Act 1996; (v) Chapter 4 of Part 2 of the Housing and Regeneration Act 2008(c) (insofar as the disposal does not fall within paragraph (a) or (b) of this matter). Matter 11.6 Provision of advice and non-financial assistance to individuals in respect of their obtaining, and living in, housing. This matter includes, in particular, advice and non-financial assistance in respect of skills that are relevant to the ability to live independently, or more independently, in housing. Matter 11.7 Provision by local authorities of caravan sites for use by Gypsies and Travellers. Matter 11.8 Homelessness. Interpretation of this field In this field— “caravan site” means— (a) land on which a caravan or other mobile accommodation (apart from a tent) is stationed for the purposes of human habitation, and (b) land which is used in conjunction with land falling within paragraph (a) of this definition; “local authority” means a county council or a county borough council in Wales; “relevant social housing body” means a person (if, or insofar as, it is not a social housing provider) which has functions relating to— (a) social housing providers, or (b) social housing; but such a person is a relevant social housing body only insofar as the person has functions relating to social housing providers or social housing; “social housing” means any housing provided by a social housing provider; “social housing provider” means— (a) a local authority, and (b) a person (other than a local authority) which— (i) provides housing to, or (ii) has functions relating to allocation of housing to, people whose needs are not adequately served by the commercial housing market; but a local authority or such other person is a social housing provider only insofar as it provides, or has functions relating to allocation of, housing.”. Amendments relating to the field of local government “Matter 12.18 Council tax payable in respect of dwellings that are not the main residence of an individual.”. No Exceptions Housing and Local Government LCO

  20. LCO 1: the disposal by a social landlord of dwellings LCO 2: disposals by social landlords of land held or used for housing purposes an Assembly Measure cannot abolish the right to buy, preserved right to buy or right to acquire. For those purposes, neither of the following is to be taken to be abolition of those rights— (a) suspension of the rights in particular circumstances; (b) modification of those rights so that they cease to apply in relation to particular classes of dwelling. an Assembly Measure can abolish the right to buy, preserved right to buy or right to acquire if both the Welsh Ministers and the Secretary of State consent to the provision. LCO 3: social housing providers. specified social housing bodies. tenure of social housing and other arrangements under which social housing is provided. disposals of social housing and land held or used for connected purposes. provision of advice and non-financial assistance to people in respect of their obtaining, and living in, housing. provision by local authorities of caravan sites for use by gypsies and travellers. homelessness. field 12 (local government) council tax payable in respect of dwellings that are not the main residence of an individual. LCO 4: LCO3 – suspension of the right to buy + written assurances regarding travellers and gypsies sites Housing LCOs

  21. Field 1: agriculture, fisheries, forestry and rural development Field 2: ancient monuments and historic buildings Field 3: culture Field 4: economic development Field 5: education and training Field 6: environment Field 7: fire and rescue services and promotion of fire safety Field 8: food Field 9: health and health services Field 10: highways and transport Field 11: housing Field 12: local government Field 13: National Assembly for Wales Field 14: public administration Field 15: social welfare Field 16: sport and recreation Field 17: tourism Field 18: town and country planning Field 19: water and flood defence Field 20: Welsh language Fields of Competence

  22. Schedule 7- A guide for the future 11 Housing Housing and housing finance. Encouragement of home energy efficiency and conservation, otherwise than by prohibition or regulation. Regulation of rent. Homelessness. Residential caravans and mobile homes.

  23. Schedule 7 continued 15 Social welfare Social welfare including social services. Protection and well-being of children (including adoption and fostering). Care of young adults, vulnerable persons and older persons, including care standards. Badges for display on motor vehicles used by disabled persons. Exceptions— • Child support. • Child trust funds. • Tax credits. • Child benefit and guardian’s allowance. • Social security. • Intercountry adoption, apart from adoption agencies and their functions, and functions of “the Central Authority” under the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. • The Children’s Commissioner (established under the Children Act 2004 (c. 31)). • Family law and proceedings, apart from— • (a) welfare, advice to courts, representation and provision of information, advice and other support to children ordinarily resident in Wales and their families, and • (b) Welsh family proceedings officers.

  24. In summary • Loads of executive powers are available in Wales • Only 1 primary legislative power relating to ‘fire sprinklers’ is available under Part 3 and Schedule 5 of GOWA 2006 • However with a positive referendum most housing laws could be made in Wales

  25. Questions

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