Campaign for public consultation on the VRTB framework
Should the emerging VRTB framework be scrutinised? Nigel Turner, director of Future Housing Review, puts forward the case for a public consultation.
The Voluntary Right to Buy (VRTB) scheme is a controversial government policy being introduced in a controversial manner. I believe that it is imperative to examine the scheme publicly before it rolls out nationwide. To this end the housing sector and stakeholders should call for a full public consultation.
The need for a formal consultation.
It is necessary to put to one side discussion on the merits and demerits of VRTB and work on the assumption that government will not give up on the scheme. There is a need to look objectively at the practicalities of the policy and how it might work in the real world. Even before the draft framework document is published, it is evident that there are many areas where clarification will be needed, including eligibility, level of discount, exemptions, portable discounts and replacements. NHF take the view that no formal consultation is needed because it has engaged in a continuous consultation exercise with its members. This view rather ignores the fact that huge amounts of public money are to be spent in the implementation of this government policy. It also does not take account of the fact that government has largely delegated the formulation of the detailed framework to NHF: in effect a private organisation has taken on the huge responsibility of bringing into existence an important national scheme, which is an unusual and potentially undemocratic way of implementing government policy.
Is there a duty to consult?
In a nutshell, the duty to consult in public law arises where:
- there is a statutory duty;
- there has been a promise to consult;
- there is an established practice of consultation; or
- a failure to consult would lead to conspicuous unfairness.
There is apparently no statutory duty to consult in this case, nor has any promise of consultation been made so far as I am aware. However, the more serious or significant the impact of a given policy, the more likely it is that the views and concerns of those affected should be taken into account before a decision is taken. In particular, it is arguable that there is a legal duty on government to consult on VRTB before implementing the policy on the following grounds:
1. There have been many previous consultations on Right to Buy.
The Department for Communities and Local Government (DCLG) (or its predecessor departments) have consulted on Right to Buy on at least eight occasions since 1997. If a government department has consulted on a particular policy in the past, that gives rise to a legitimate expectation that it will do so again.
2. Not having a consultation would lead to conspicuous unfairness.
- Local authorities are being required to fund the deal through disposal of their housing assets. In those circumstances, how unfair would it be if they are not consulted? I understand that Local Government Association would be in favour of a consultation.
- Organisations representing tenants who will be the beneficiaries of a voluntary scheme should also be consulted in the interests of fairness. Interestingly, in research recently published by the Council of Mortgage Lenders, more social tenants say they want to stay in rented accommodation (46%), than want to become owner-occupiers (39%).
- Housing associations who may not agree with the policy (in whole or in part) are also owed a duty of fairness and should be allowed to voice their opinions in a consultation outside the NHF process. In my view it would be reasonable for a housing association board to defer publishing its policy on the VRTB scheme until there is a full consultation.
- The voluntary scheme is being introduced jointly by NHF and DCLG without consulting parliament on the detail. A public consultation is needed to allay real concerns as to lack of transparency.
3. When should the consultation take place?
Ideally, the consultation would take place immediately following publication of:
- a draft framework document;
- impact assessment, funding and risk data; and
- evaluation of the pilot schemes.
It is important that the consultation should happen quickly, while the policy is still at a formative stage. There is nothing to stop government advancing the NHF framework document as its preferred option, so long as it is open minded enough to take proper account of the consultation responses.
The next steps.
The housing sector and stakeholders should campaign for a consultation if they are to avoid the risk of sleepwalking into acceptance of a right-to-buy scheme which has not been properly reviewed.
Would you be prepared to put your (or your organisation’s) name to an open letter to Gavin Barwell, DCLG and NHF requesting a public consultation on VRTB? If so, please contact me by email at email@example.com