Security at Last in Wales!
The Welsh Government are finally bringing into force the terms of the Mobile Homes Act 1983 on local authority Gypsy/Traveller sites. This means that security of tenure will be brought in for the first time on such sites.
Firstly, however, the Government are carrying out a consultation process. It is very important that Gypsies and Travellers in Wales and their representatives and supporters take part in this process. The Welsh Government are to be commended for holding meetings about the consultation on every local authority site. The consultation paper can be found here.
The deadline for submissions is March 29th.
The Travellers Advice Team (TAT) at Community Law Partnership advise and represent Gypsies and Travellers throughout England and Wales. Their submission is reproduced below. TAT are happy for people to use parts of their submission themselves if they find it useful.
Community Law Partnership submission to Welsh Government consultation on implementing the Mobile Homes act 1983 on local authority Gypsy and Traveller sites
Introduction
The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT), a ground-breaking nationwide, 24 hour advice service for Gypsies and Travellers.
TAT advises Gypsies and Travellers throughout Wales and England and has taken some of the leading cases in this area of the law.
We are pleased to see that the Welsh Government (WG) are finally bringing in security of tenure on local authority sites. We also welcome the commitment from the WG to re-introduce the duty to provide sites. Very positive steps are being taken by the WG with regard to Gypsy and Traveller issues.
Assignment
Question 1: Do you agree with the proposal not to apply the provisions in the implied terms of the Mobile Homes Act 1983 on assignment to local authority Gypsy and Traveller sites? If you disagree, please give reasons.
We are well aware that most Gypsy and Traveller support and campaigning groups are opposed to a right of assignment on local authority Gypsy and Traveller sites because it would, so they fear, subvert the current system of allocation based on need and prioritisation. Accordingly, we accept this basic position but with a rider. Secure tenants of local authority houses and flats have a right to assign under Housing Act 1985 s91(3) to someone who would be entitled to succeed to their tenancy. We believe it would be unjustifiable discrimination to exclude Gypsy and Traveller residents on local authority sites from this right. We would, therefore, propose a restricted right of assignment in the same terms as s91(3).
Succession
33. For these reasons, provisions (sections 3(3)(b) and 4) of the MHA relating to succession where no family member is living with a resident when they die will be applied to local authority Gypsy and Traveller sites.
For the reasons given by the WG in the consultation paper, we agree with this proposal.
Arbitration
43. If the Welsh Government decides to proceed with this transfer, it also proposes that agreements should not be permitted to bind site owners and residents to resolve disputes through arbitration.
For the reasons given by the WG in the consultation paper, we agree with this proposal.
Jurisdiction
Question 2: Do you agree that jurisdiction for resolving disputes and proceedings (excluding possessions) on local authority Gypsy and Traveller sites should transfer from the County Courts to Residential Property Tribunals in accordance with the MHA? If not, please give reasons.
Legal aid is not available for representation before a Residential Property Tribunal(RPT). Tribunals are not really any more informal than courts. While the Tribunal Chairman/woman may try to be helpful to a litigant in person, s/he cannot actually run the case for that litigant and the litigant will usually be faced with a barrister and/or solicitor acting for the local authority. Additionally there are high levels of illiteracy and educational disadvantage in the Gypsy and Traveller community. Inevitably Gypsy and Traveller litigants in person will find it very difficult to cope with or succeed in RPT proceedings.
However, there has been a most unfortunate change in circumstances since we first put the above submission to the English consultation on the same subject. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 comes into force on April 1st 2013. On that date a large number of non-possession MHA 1983 disputes will go out of scope for legal aid altogether. In those circumstances we are mindful that costs are only awarded against an unsuccessful party in a RPT if they act unreasonably, frivolously or vexatiously.
Given this, and most reluctantly, we agree with this proposal. However we think it is most ironic and most unfortunate that, just as Gypsies and Travellers on local authority sites obtain the rights contained in the MHA 1983, they have taken from them the means of enforcing those rights if needs be.
Re-siting a caravan
Question 3: Do you agree with the proposal to amend the implied terms to enable local authorities to require a resident on one of their Gypsy and Traveller sites to move their caravan to a pitch on another site, as well as another pitch on the same site, for example when they need to carry out repairs to the pitch?
We agree with this but only where the works render a move to an alternative site absolutely necessary and provided the obligation on the local authority to allow the resident to return to his/her pitch once the works are done is retained. We also most strongly suggest that some accompanying guidance would be required to indicate to local authorities that works must be carried out within a reasonable timescale and must not be unreasonably delayed.
Repairs
Question 4: Do you agree with the proposal to amend the implied terms to clarify that local authorities will continue to be responsible for repairing any amenities provided by them on the pitch as well as the base (or hardstanding)?
Question 5: Do you agree with the proposal to amend the definition of “essential repair and emergency work” in the implied terms to specify that these works include repairs to amenities provided by the local authority, as well as the base (or hardstanding)?
We agree with both the proposals here for the reasons given in the paper. However, we would add that we feel that the term with regard to ‘common parts’ needs strengthening.
Transit sites
Question 6: Do you agree with the Welsh Government’s proposal to introduce the stated implied terms for transit pitches? Are there other alterations that you consider appropriate for transit provision?
We agree with the WG’s proposed implied terms. However, we would have thought there should also be terms as to repairs, perhaps in a more limited form as compared to the terms that apply to permanent sites.
Transfer from licences to agreements
Question 7: Do you agree with the Welsh Government’s proposal to transfer all existing licences to agreements automatically on commencement of Section 318 of the Housing and Regeneration Act 2008?
We do not agree. A written statement containing all implied and express terms should be provided within the relevant timescale. Moreover, we have been advising Gypsies and Travellers in England since the MHA 1983 came into force there in April 2011. We have seen many cases where the local authority concerned attempts to introduce amendments to express terms or new express terms without agreeing those with residents and sometimes without even pointing the changes out to residents. There should be sanctions within the MHA 1983 aimed at deterring local authorities from acting in such an unlawful and high handed way.
Overpayments
Question 8: Do you agree with the proposal that residents should also be able to use the implied terms to recover any payments made under a licence that might cover the period after an agreement is terminated?
We agree.
Pitch fees
Question 9: Do you agree that if no review date is included in a licence then the last review date for the purposes of calculating the change in RPI should be a year prior to whatever review date is included in the agreement? Do you also agree that site owners should not be limited to pitch fee changes in line with RPI, if residents have been consulted and the fee increase will pay for site improvements?
We agree apart from where the improvements have been grant funded by the Welsh Government, in which case we do not think the pitch fee should take account of such improvements.
Improvements proposed before agreement
Question 10: Do you agree that where a local authority has already consulted residents on proposed improvements to a site prior to an agreement being made, and that the work will start within 28 days, they should not have to consult them again, as the implied terms would require?
We agree.
Other transitional provisions
Question 11: Do you think there are any other implied terms under the MHA which may require transitional provisions?
We have no other transitional terms to suggest.
Community Law Partnership 7th March 2013
TAT runs a self-funded national telephone helpline for Gypsies and Travellers, 0121 685 8677, Monday to Friday 9am to 5pm.
Also see the Community Law Partnership website at: www.communitylawpartnership.co.uk