A new tactic for bullies?
DISPUTE RESOLUTION UNDER THE MOBILE HOMES ACT 1983
Response of Community Law Partnership to the Communities and Local Government Consultation Paper Dispute Resolution under the Mobile Homes Act 1983 (as amended): Summary of responses and further consultation (May 2009)
The Travellers Advice Team (TAT) at Community Law Partnership (CLP) advises and assists Gypsies and Travellers throughout England and Wales. CLP has acted in some of the leading cases in this area such as the two cases for Mrs Porter and the case for Mr Doherty (all successful in the House of Lords).
CLP and Garden Court Chambers assisted the Traveller Law Reform Project (TLRP) in their response to the previous consultation paper (A New Approach). TLRP vehemently opposed the transfer of all disputes (other than possession actions) to tribunals. Despite CLG’s conclusions on this issue, CLP (and, we believe, most other Gypsy and Traveller groups) maintain vigorous opposition to this transfer. However, we will not rehearse our arguments here but will concentrate on the new issue for consultation raised in Part Two of the latest papers, concerning how possession actions will be dealt with. We will simply mention in passing that we note that 1,650 of the 1,730 responses from park home residents were in the form of a residents’ campaign letter. It seems that the main thrust of this campaign was that court proceedings were seen as “daunting, slow and expensive” (p 8). Unfortunately, we believe that it will inevitably transpire that tribunal proceedings will be no less daunting, slow and expensive. We hasten to add that this is based on our extensive experience of tribunal proceedings.
We also note in Part Three (Equality Impact Assessment) that there is mention that there will be a “dedicated helpline service” for Gypsies and Travellers from late 2009 (p 60). We would like to point out that this service already exists and has been running since April 2002. We are aware of this since CLP runs the service! However, obviously, this service cannot provide advocacy.
In Part Two of the paper, and completely out of the blue, CLG propose that the so called “fact finding role” in possession proceedings be dealt with by Residential Property Tribunals (RPTs) while the “legal role” will be dealt with by the county court.
We are, frankly, rather dumbfounded by this completely and utterly nonsensical suggestion. It shows a complete misunderstanding of how court and tribunal proceedings work. It runs counter to all accepted wisdom on judicial functions.
Overwhelmingly “consultees believe that termination cases should remain within county courts” (p 17). However CLG states “we have heard from residents that site owners sometimes use termination proceedings as a bullying tactic and as a means of securing their own way. If that is so, we believe this is an abuse of the court’s system and that no cases should come before a court unless the facts relating to it have been established and verified. The Government, therefore, proposes to introduce a filter mechanism in respect of termination cases….” (p 18).
It is not made clear how many “residents” felt that the threat of court proceedings were used as a bullying tactic. Insofar as this might be true (which is not necessarily accepted), site owners have not, of course, to date, been able to use the threat of tribunal proceedings as a bullying tactic. Why would such a threat not also be a bullying tactic? As explained below, the Government is probably gifting site owners a far more effective bullying tactic by these proposals.
There is no case that comes before a court with “the facts relating to it…….established and verified”. In the case of Forfeiture under Section 168 (4) of the Commonhold and Leasehold Reform Act 2002, the only discretion the court has to exercise is if the tenant applies for relief. We note that the Sweet and Maxwell Housing Law Encyclopaedia describe this provision as an interim measure pending the abolition of forfeiture. It is clearly not a good example with regard to ordinary possession actions. On the contrary, not just in possession cases, it is a vital part of the whole judicial system that the judge who hears the case at first instance comes to a conclusion on the facts and then applies the law to his/her decision on the facts. The appellate courts always stress the importance of deferring to the judge’s findings since the judge has heard the evidence of both parties.
But now, in the rather surreal system suggested by the Government, the judge is to apply the relevant law to facts that have been set in stone by some other body. The proposal also misunderstands the whole judicial process. It is simply not possible to completely separate the facts from the law. For example, the local authority in question may be seeking to show that the site resident is in rent arrears. That would appear to be a purely factual issue. However, the site resident might argue that they are not in rent arrears because the last rent increase did not comply with the provisions of the Mobile Homes Act 1983. Therefore, the sensible approach is to look at what happened at the time of that last rent increase. That will, inevitably, be a complex web of fact and law. To try and separate the fact from the law and then to try and get them dealt with in separate venues is a suggestion so bizarre that it beggars belief.
The Government claims to want to filter cases “to prevent cases of no merit from getting to court in the first place and thereby, reduce or remove unnecessary anxiety, distress and expense to innocent residents” (p 43 para 31).
This is a worthy goal but the best way to achieve that is by the creation of a protocol or protocols (e.g. the Rent Arrears Protocol for tenants of local authorities and registered social landlords).
The “filter” that the Government proposes will, in fact, make it easier for a site owner who wants to try and get a resident out when there is no meritorious case against the resident. The site owner can get the facts decided before a tribunal. Despite what is said elsewhere in the Government’s paper, tribunals involve formal and equally daunting procedures and hearings. The law, of course, remains complex regardless of where the matter is heard. The law does not suddenly become simple and understandable for the lay person when it is dealt with by a tribunal.
Equally, what facts may or may not be relevant are often not apparent to the lay client. For example, in the recent case of Port of London Authority v Ashmore [2009] EWHC 954, HHJ Stephen Smith QC, in his judgment, stated:
...litigants in person will not necessarily appreciate what facts are relevant to their case on the legal issues which are raised (at para 7).
Most importantly, Legal Aid is not available for RPTs and the suggestion that ‘exceptional public funding’ (EPF) may be available may not be correct. EPF may be available, where a resident is financially eligible for Legal Aid and where the case involves ‘the roof over your head’. However, at the proposed stage of going to the tribunal, it might be argued that the ‘the roof over your head’ is not yet at risk. Even if EPF is available, it only covers the cost of an advocate and is paid at a much lower rate than Legal Aid rates. It usually does not include preparation time.
It may be extremely difficult to find solicitors or barristers who would be willing to act in such a case at such a low rate. Mention is made of Legal Help being available for advice and assistance but not for advocacy (p 60). However, without assistance at the hearing, many Gypsies and Travellers will be at a serious disadvantage. Indeed this disadvantage is accepted and analysed by the government in Part Three, the Equality Impact Assessment.
If the finding on the facts by the tribunal goes against the resident, then the court process may simply amount to rubber stamping. However, we believe that county court judges may find it very hard and certainly much harder to decide on the question of reasonableness, when they have not heard the evidence. There may well be an application to suspend any order that is made. Evidence will then be called before the county court judge and this evidence will, inevitably, begin to re-visit or even completely re-run the evidence that was previously heard by the tribunal i.e. a complete duplication of time and effort. We believe that transfer of the ‘fact finding’ part of a possession action to a RPT, certainly with regard to Gypsies and Travellers and also we feel with regard to all park home residents, would amount to breaches of Articles 6 (Right to a fair hearing), 8 (Right to respect for private and family life and home) and 14 (Discrimination – especially in comparison to secure tenants of council flats and houses) of the European Convention on Human Rights.
This unexpected proposal by the Government would appear to fail to answer the problem that was identified by the European Court of Human Rights in the case of Connors – v – UK. If Mr Connors was facing eviction under this new regime, it is not clear that he would stand any better chance of actually properly presenting his case.
With regard to local authority Gypsy and Traveller sites, which are now to be included within the terms of the MHA 1983, we would hope that local authorities are unlikely to resort to the kind of ‘bullying tactics’ that are referred to in the paper from the CLG. At the very least, it is totally unnecessary to split the possession process for such sites. We call on the Government to introduce a protocol or protocols to try and ensure that possession action is a last resort. With regard to the specific questions that are posed at the end of Part Two (at p 44):-
Question 1. For the reasons given above, we are utterly opposed to this proposal;
Question 2. For the reasons given above, the appropriate forum for consideration of a repairs order is the court;
Questions 3 and 4. Given our answers to 1 and 2 above, we will not answer these questions. Tribunals should not be involved in possession actions.
Community Law Partnership – June 2009