Getting off the roundabout

It is important that local authorities have policies on how they will deal with unauthorised encampments. Such policies should aim to try and enable Gypsies and Travellers to get off the roundabout of perpetual evictions. What matters should be included in such policies?

The Government Guidance on the management of unauthorised encampments in England is contained in Department of the Environment Circular 18/94 Gypsy Sites Policy on Unauthorised Camping, Office of the Deputy Prime Minister (ODPM) Guidance on Managing Unauthorised Camping (2004), and ODPM/Home Office Guide to Effective Use of Enforcement Powers : Part 1 Unauthorised Encampments (2006). 

The relevant Welsh Guidance is contained in Welsh Office Circular 76/94 Gypsy Sites Policy and Unauthorised Camping and Welsh Assembly Guidance on Managing Unauthorised Camping (2005).  All of the Guidance lays emphasis on the need for consideration of welfare issues following on from welfare enquiries and the need for consideration of potential “toleration” of locations. 

The Guidance also advises local authorities to produce their own written policies on unauthorised encampments in liaison with other relevant agencies. 

We are now at a stage when most, if not all, local authorities in England and Wales have completed their Gypsy and Traveller Accommodation Assessments (and we are close to the  finalisation of pitch requirements for the next few years) and some have already begun the process of identifying locations for the required sites (ODPM Circular 01/2006 and Welsh Assembly Government Circular 30/2007 refer).  In the meantime large numbers of Gypsies and Travellers will continue to reside on unauthorised encampments.

Those Gypsies and Travellers that do not have authorised pitches are homeless under the Housing Act 1996 Section 175(2)(b) and if they make an application for homeless persons’ accommodation they may be owed duties under the homelessness legislation. Local authorities dealing with such an application may need to investigate whether there are authorised pitches available for homeless Gypsies and Travellers.

Rather than deal with the homelessness of Gypsies and Travellers on an ad hoc basis, many people have called for local authorities to take a sensible approach while we wait for official permanent and transit sites to come through the system and for them to identify pieces of land that could be used for the location of temporary “tolerated” sites in the meantime.

There is no doubt that a local authority must consider whether to tolerate an unauthorised encampment and whether there are any alternative locations which might accommodate Gypsies and Travellers living on such a site before deciding whether it should evict them. In the case of R (Casey and Others) v Crawley Borough Council and the ODPM [2006] EWHC 301 Admin, Burton J framed three options that were available to the Defendant local authority:

i)       to seek and obtain possession of the site (option 1);

ii)      to tolerate the Gypsies or Travellers concerned, if only for a short time, until an alternative can be found (option 2);

iii)     to find an alternative site, if only on a temporary basis, and offer the Gypsies or Travellers concerned a move to it (option 3)

It is arguable that a local authority’s failure to identify an alternative location for Gypsies and Travellers living on an unauthorised encampment may well be render its decision to evict them from such a site unlawful. In the case of West Glamorgan County Council  v Rafferty, R  v Secretary of State for Wales ex parte Gilhaney [1987] 1 WLR 457, a local authority’s decision to take eviction action against an unauthorised encampment was successfully challenged on the basis that that same local authority had failed in its duty (under the then relevant provision of the Caravan Sites Act 1968) to provide sites for Gypsies and Travellers. There is no need to stretch the imagination in order to foresee a similar decision being reached in circumstances where eviction action is taken despite a local authority having failed to identify sites in accordance with ODPM Circular 01/2006 or WAG Circular 30/2007.

Given those points we would suggest that any local authority policy on the management of unauthorised encampments should include a clear reference to the need to consider toleration of the site in issue and the need to investigate whether there are alternative locations which could accommodate the Gypsies and Travellers living on the site if it is considered that the encampment must be moved.  Unless a local authority has such a policy and can show that it has been followed, it may find that its decision to evict Gypsies and Travellers from an unauthorised encampment is unlawful.

Chris Johnson, Community Law Partnership (CLP)

Marc Willers,  Garden Court Chambers

The Travellers Advice Team (TAT) at CLP have a Gypsy/Traveller Telephone Helpline available on 0845 120 2980 Monday to Friday 9am to 5pm or you can have an initial chat with a member of the Team by phoning CLP on 0121 685 8595.

Thanks to Emma Westwood, the TAT Administrator, for organising this blog.