Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011
Baroness Hanham
That the Grand Committee do report to the House that is has considered the draft Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I apologise that this speech will be rather longer than I would have wished, but I shall get through it as quickly as I can.
The Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011, the Mobile Homes Act 1983 (Amendment of Schedule 1 and Consequential Amendments) (England) Order 2011 and the Mobile Homes Act 1983 (Jurisdiction of Residential Property Tribunals) (England) Order 2011 were laid in the House on 31 January and, subject to your Lordships’ approval and the approval of Members in the other place, our intention is for them to come into force on 30 April.
I turn first to the Mobile Homes Act 1983 (Jurisdiction of Residential Property Tribunals) (England) Order 2011. There are some 2,000 or so park home sites in England providing around 85,000 affordable homes. The Government value the park home sector, which provides an alternative to mainstream housing for many thousands of households in this country, often older people. The Government wish to ensure a well run sector in which disputes between residents and site owners can be resolved informally by negotiation and agreement. However, it will not always be possible for parties to resolve disputes between themselves. It is vital, therefore, for there to be an effective independent resolution system.
Often residents complain that they are unable to effectively challenge their site owner's decisions or enforce their rights because of the complexity and cost of court proceedings. Site owners, too, are concerned about the expense and delay in dispute resolution that court action can cause. Some of the responses to the consultations suggest that there are sharp practices in the sector and that unscrupulous site owners can be obstructive and even threatening when residents try to exercise their lawful rights. The transfer of jurisdiction will provide residents facing these abuses with a quick and cheaper means of challenging such behaviour.
The aim of the order is to create a level playing field between site owners and residents in resolving disputes and enforcing their rights. It will do this by transferring most dispute resolution and other proceedings from county courts to residential property tribunals.
The order has been long awaited by the park home community. I am sorry that the noble Lord, Lord Graham of Edmonton, is not here, as he has been very much in the forefront of this and pushing for change. I hope that the fact that he is not here does not mean that he is too unwell. The order will apply to all mobile home sites, including park home sites and privately managed Gypsy and Traveller sites, as well as those owned by local authorities. The previous Government originally consulted on this proposal in May 2008 and it was welcomed by the majority of resident and site owner consultees, while a small minority, including representatives of Gypsies and Travellers and some site owners, preferred to retain the court to resolve disputes. Although, following further consultation, the previous Government announced in December 2009 that they intended to transfer the jurisdiction of the courts to hear most types of disputes to residential property tribunals, the transfer did not take place.
It has been a priority of my right honourable friend the Minister of State for Housing and Local Government to introduce a framework whereby residents and owners of park home sites are treated on an equal footing in dispute resolution. That is why he announced on 14 July last year that he intended to implement the transfer, subject to Parliament’s approval.
The order transfers dispute resolution and other proceedings under the Mobile Homes Act from county courts to residential property tribunals, except applications to terminate an agreement, which will remain within the county court’s jurisdiction. However, if the ground on which termination is sought is that the home is in disrepair, this fact will in the future need to be established in the tribunal before the court can be asked if it is reasonable to terminate the agreement.
The tribunal will be able to deal with such matters as pitch fee reviews or applications for approval of a purchaser of a home that arise after 30 April, as well as other matters, such as re-siting of homes, recognition of qualifying residents’ associations and other contractual disputes.
Tribunals are cheaper and easier to use than the courts. In some cases, such as those relating to pitch fee reviews, no fee will be payable to make an application. Where there is a fee, it will be set for a single application at £150—and this will be waived for applicants in receipt of certain state benefits. Unlike in the courts, applicants and those defending cases do not risk having costs awarded against them if they lose. The tribunal does not award costs in favour of a party because he or she wins, but it can impose penal costs up to a maximum of £5,000 if one of the parties to the proceedings has acted unreasonably. Of course, we recognise that transferring dispute resolution to the tribunal will not be a solution to all the problems that park home residents face from the minority of unscrupulous operators in the park home sector, although it will go some way towards making it easier to challenge their behaviour.
My right honourable friend the Minister of State for Housing and Local Government announced on 10 February that he proposed to consult on a range of measures that will help to address these problems by giving further powers and tools to local authorities to better monitor and enforce the licences that they grant for park home and other caravan sites and to improve the buying and selling process of park homes by giving new powers to this tribunal to intervene when site owners have unreasonably blocked sales in the past. He plans to consult on these measures in the spring.
I turn to the two orders that relate to the application of the Mobile Homes Act 1983 to local authority Gypsy and Traveller sites. I have given their full titles before and I am not going to say them again. These orders will come into force in tandem with and as a consequence of the commencement of Section 318 of the Housing and Regeneration Act 2008. Section 318 removes the provision that currently excludes local authority Gypsy and Traveller sites from the protections of the Mobile Homes Act 1983. Section 318 will be brought into force by a commencement order that does not require parliamentary procedure.
On 29 August 2010, the Secretary of State for Communities and Local Government announced his intention to apply the Mobile Homes Act 1983 to local authority Gypsy and Traveller sites by commencing Section 318 of the Housing and Regeneration Act 2008. This is part of a package of measures to provide a fair deal for Travellers and the settled community.
Gypsies and Travellers who play by the rules and live on authorised sites will have the same protection against eviction as people living on other types of residential mobile home sites, such as park home sites. The new homes bonus will reward communities that provide additional authorised Traveller sites. Funding will be available to councils for the provision of authorised sites through the Traveller pitch funding scheme. Both schemes will begin in April 2011. Councils will get stronger powers to tackle the unauthorised development of sites. Proposals to limit the opportunities for retrospective planning applications, in relation to any form of unauthorised development, are set out in the Localism Bill.
The role of elected councils in planning for Traveller sites will be strengthened by the abolition of regional strategies and the replacement of Planning Circulars ODPM 01/2006 and 04/2007 with a short, light-touch new policy. The legal basis for regional strategies will be abolished through the Localism Bill, and a consultation on the replacement of the planning circulars will be published shortly.
The rights and responsibilities of Gypsies and Travellers living on permanent local authority pitches are currently covered by the Caravan Sites Act 1968. This provides only limited protection from eviction and harassment. In particular, in order to evict a resident who might have lived on the site for a number of years, a local authority need only give a minimum of 28 days’ notice to terminate the licence and obtain a court order for possession. The court does not have the opportunity to consider whether it is reasonable to grant the order, although it can suspend the possession order for up to a year at a time.
Lord Avebury
My Lords, I am most grateful to the Minister for her careful explanation of the terms of the three orders. I endorse the tribute that she paid to the noble Lord, Lord Graham of Edmonton, who has fought for the rights of people living in mobile homes for at least the past 25 years and probably many more. Going back to the Mobile Homes Act 1983, he has always been at the forefront of the struggle to give mobile home dwellers the same rights in disputes as people who live in conventional housing. The orders accomplish that. As the Minister explained, they also extend the provisions of the 1983 Act to people living on Gypsy and Traveller sites so that they enjoy the same protections as have hitherto been enjoyed by non-Gypsies. I should like to raise only a couple of points on these aspects of the orders.
In the amendment of Schedule 1 order, the definition of Gypsies is taken from the Caravan Sites Act 1968, into which it had been copied from the Caravan Sites and Control of Development Act 1960. The Act states that,
“‘gipsies’ means persons of nomadic habit of life, whatever their race or origin”.
I think that the Minister is aware that in the case of Wrexham County Borough Council v Berry in 2003, the Court of Appeal held that Mr Berry, who had retired because of ill health and was no longer nomadic, was not a Gypsy according to the statutory definition. The Government at the time acknowledged that a new definition was needed, and the formulation with which they came up, in paragraph 15 of ODPM Circular 1/2006, was that,
“‘gypsies and travellers’ means … Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently”.
Secondly, the residential property tribunals order provides that most disputes other than possession actions on 1983 Act sites, including local authority Gypsy sites, formerly dealt with by the county court or an arbitrator, are to be dealt with by the RPTs. As the Minister has explained, the average cost of an application to the RPT is estimated at £150, compared with £4,000-plus for presenting or defending a case before the county court. In the consultation with Gypsies and Travellers, the Government undertook to ensure that Gypsies and Travellers were provided with assistance in presenting their case. Not surprisingly, the overwhelming majority of respondents to the consultation favoured the use of RPTs, with only a handful supporting the other two alternatives—the retention of the county court's jurisdiction or the creation of a dedicated tribunal dealing with park homes and Gypsy site cases, other than cases related to termination proceedings.
The Government, who had agreed that compulsory arbitration clauses should no longer have effect as they appeared to favour site owners, appear to have left a loophole in this order. In paragraph 7.8 of the Explanatory Memorandum, it is said:
“Where an agreement specifies that a dispute is to be determined by an arbitrator that requirement will not have effect and instead the disputes will be determined by a Residential Property Tribunal”.
Sure enough, the order provides that in new Section 4(5) of the 1983 Act, if the owner and occupier have entered into an arbitration agreement before the question arose, a tribunal has jurisdiction to determine the question and entertain any proceedings arising instead of the court—and in this case the tribunal would normally be the RPT. But when the sequence is reversed, with the question arising before the agreement, new Section 5(1)(d), in the interpretation clause, says that in that context “tribunal” means the arbitrator. Presumably, if a question arises other than an application by a site owner to terminate an agreement, which is still to be determined in the county court in all circumstances, the occupier would be advised not to accept an arbitration agreement, so that it would be extremely rare for those questions to be determined by the arbitrator rather than the RPT. But why did the Government find it necessary to make this difference in the order between questions that arise before and after an agreement? The Explanatory Memorandum is silent on the matter, and I would welcome some elucidation by the Minister.
Lord Scott of Foscote
My Lords, I shall say just a few words about the arrangements made by these statutory instruments regarding the so-called transit pitches. However, I must make a comment on what the noble Lord, Lord Avebury, has just said on the nomenclature. Years ago, when I was at the Bar, I got involved in a case involving some children who had been taken from their mother and secreted in some caravans where some Gypsies resided. When the case eventually reached court and I was cross-examining, and I said, “I don’t know why you’re so upset, because my client too is a Gypsy”, the answer was one of scorn. I was told, “He’s not a Gypsy—he’s nothing but an Irish tinker”. But he was certainly a Traveller. One has to be careful about who one is calling a Gypsy, because the expression does not necessarily extend to all nomadic Travellers who live in mobile homes and caravans.
Be that as it may, I shall make some remarks about the arrangements made for the so-called transit pitches. These are defined in the statutory instrument as,
“a pitch on which a person is entitled to station a mobile home … for a fixed period of up to 3 months”.
As I understand it, these transit pitches are needed by local authorities—this applies only to local authorities—because from time to time there are eviction orders made against Gypsies/Travellers who have been stationing their caravans or mobile homes on private land; the landowner has obtained an eviction order so they have to move—and the question is where they can move to. The local authorities want to have available sites—I am speaking as a matter of belief, and I must be corrected by the Minister if this is wrong—where they can be decanted from the site from which they have been evicted as an emergency matter, hence the need that the local authorities’ transit pitches should not be permanently occupied. The distinction is between permanent sites and transit sites.
Lord Scott of Foscote
If the noble Baroness can listen at the same time as being spoken to, she is a remarkable lady.
These are points that the Minister’s department should consider in connection with this statutory instrument before treating it as satisfactory in its present form. I saw this before—perhaps I should have said that I am a member of the Merits of Statutory Instruments Committee. I remember reviewing this and raising the points that I have raised this afternoon when the Select Committee considered this instrument. I do not know whether the secretariat of the Select Committee communicated the points I made to the department; it may not have done, but if it did, the points will be somewhere on file in the department. If it did not, the department needs to consider them and consider improving the statutory instrument by withdrawing it and redrafting. That, I remember, was done before the election by the previous Government when the Select Committee had objections to the way a particular statutory instrument was phrased and it led to a meeting for which the Minister, Mr Jack Straw, came to this part of the Palace of Westminster. He had a meeting with the chairman of the Select Committee, his officials and me, where we worked out a satisfactory wording, and the statutory instrument was withdrawn and relaid and went through in that satisfactorily amended form. I respectfully suggest that something similar needs to happen to this statutory instrument, because I do not believe that it is going to be satisfactory as it is now drafted.
Baroness Whitaker
My Lords, I share the pleasure of the Gypsy, Roma and Traveller communities that the long-standing source of discrimination and harm caused by their lack of equal tenure rights on mobile homes has been put right by these orders. I congratulate the Government on the orders, but, as has been said by the noble Lord, Lord Avebury, and the noble and learned Lord, Lord Scott of Foscote, there are problems and I, too, am surprised that the Merits Committee did not make more of them.
I want to add a few words on two provisions. The first, the outdated definition explained by the noble Lord, Lord Avebury, which was not flagged up in the consultation, would exclude a large number of Gypsy, Roma and Traveller residents—because, for instance, they want their children to have a continuous education, or they need regular healthcare—from the rights provided in the order. Two-thirds of the Gypsy, Roma and Traveller community live in settled accommodation from time to time at least. I really think that this must be put right. Could guidance do it? I do not see how it could, but what does the noble Baroness say?
The second provision that I want to comment on effectively excludes all possessions actions from the last resort of justice at a court of law, as the noble Lord, Lord Avebury, said. I had thought that the Government’s intention was to drop the idea of arbitration being the final stage, so that everything could go to the residential property tribunals, with their last resort being the courts. The weakness of the order as it stands, as far as I understand it, is that the local authority can insert an arbitration agreement in contracts as a device to avoid any possibility of court action. I do not think that that is fair either, and that was not our intention when we moved the amendment that eventually brought this order about. I submit that this, too, needs amendment.
Lord Patel of Bradford
My Lords, first, I pay tribute to the work done in this area by the noble Lord, Lord Graham of Edmonton. It is sad that he is not here today.
I shall be brief because the noble Lord, Lord Avebury, the noble and learned Lord, Lord Scott, and my noble friend Lady Whitaker have covered some key issues. I welcome the changes in the three instruments to provide the same procedural safeguards and other rights and responsibilities to Gypsies and Travellers on local authority sites as on private sites. This is in line with the previous Government’s policies, which were aimed at increasing the number of authorised pitches and ensuring that appropriate enforcement powers were available.
I am grateful to the Minister for outlining clearly and in great detail how the current provisions provide limited protection from eviction and harassment. If these changes were not made, there would be a risk that the current problems—the continuing inequality—would be perpetuated, which would inevitably lead to an increase in the number of challenges to possession actions and associated costs. Therefore, the proposed changes should improve security of tenure for Gypsies and Travellers on local authority sites, which has to be welcomed.
I echo and add my endorsement to the issues that my noble friend and other noble Lords have raised. They are crucially important. There are two particular issues that I shall add a little more comment on, which have been clearly identified. The first is on the definitions. Under the Mobile Homes Act 1983 (Amendment of Schedule 1 and Consequential Amendments) Order 2011, in Chapter 1, paragraph 1(4), the interpretation as I and other noble Lords have read it clearly says that the words “Gypsies and Travellers” mean,
“persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such”.
Therefore, a large number of residents on local authority sites would fall outside this definition. The noble Lord, Lord Avebury, gave the example of the Wrexham CBC v Berry case in 2003, which held that Mr Berry, who had retired on the grounds of ill health, was no longer a Gypsy in terms of the definition. The Government accepted that this was not an acceptable situation and introduced a new definition, in paragraph 15 of Office of the Deputy Prime Minister Circular 01/2006, so that “Gypsies and Travellers” means,
“persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently”—
again, excluding members of an organised group, and so on. It would be really helpful if the Minister could say what the situation is. Has this order been drafted wrongly and does it need redrafting, or is it associated with a previous Act in some way?
I shall not labour my second point, because the noble Lord, Lord Avebury, has referred in detail to arbitration. I hope that the Minister can provide us with some reassurances, particularly on what my noble friend Lady Whitaker said about exclusion of all possession actions. That concerned me with regard to residents being able to take disputes to court when there is an arbitration agreement. As has been said, this could provide local authorities with a method for avoiding any matters going to the court by inserting an arbitration agreement. If the Minister could address that point, it would be helpful.
As the noble Baroness said, the preferred option in the consultation in 2008 was to transfer jurisdiction to the RPT, although clearly applications to terminate agreements would still be dealt with by the county courts. If the Minister could reassure us on that issue, it would be very helpful.
Overall, the new rights, which remove the current exclusion of local authority Gypsy and Traveller sites from the provisions of the Mobile Homes Act 1983 and ensure that residents of authorised sites have the same protection against eviction as those living in other residential mobile homes, are to be welcomed. However, I would be grateful if the Minister could provide reassurance that the rights will not be limited to certain narrowly defined groups or prevent residents from taking a dispute to court if arbitration does not resolve it to their satisfaction.
Baroness Hanham
My Lords, I am grateful to noble Lords who have attended the Committee and for their comments. It is correct that the definition of Gypsies and Travellers was changed as a result of concerns expressed about it. However, for the purposes of the order and for it to come under the Mobile Homes Act, the definition had to revert to that provided in the 1960 Act; otherwise, Gypsies and Travellers could not have been encompassed by it. Gypsy and Traveller sites as they are defined pending commencement of Section 318 of the Housing and Regeneration Act 2008 are excluded from the Mobile Homes Act. That is why we went back to the 1960 Act, under which they are not.
The exclusion from the 1983 Act of local authority Gypsy or Traveller sites relates to land and not to people. It is not the Gypsies who are affected by it but the sites. Gypsies and Travellers who rent pitches on private sites have agreements under the Mobile Homes Act.
Baroness Whitaker
When the order comes into force, will Gypsy, Roma and Travellers who from time to time live in settled accommodation have equal rights of tenure?
Baroness Hanham
I am receiving lots of nods from behind me—if you saw them, it was four nodding-of-heads. I shall interpret that as yes.
I hope that I have adequately explained why we have had to amend the definition. If we had not, we would not have been able to include Gypsies and Travellers in the orders.
Lord Avebury
For the life of me, I cannot understand how, when the order comes into force and someone brings proceedings in respect of a Gypsy living in a mobile home under the 1983 Act, a court is not bound to reach the same conclusion as it did in the case of Berry. It would say, “This person is not a Gypsy and he is therefore not entitled to benefit from the provisions of the order or of the 1983 Act”. What fallacy is there in that argument?
Baroness Hanham
My Lords, as I understand it, if that is the conclusion, it means that we cannot bring the order forward. Without the original definition, we cannot change the Mobile Homes Act, which is the purpose of the order. As I understand it, Section 318 of the Housing and Regeneration Act 2008 will bring forward the other definition when it is implemented. This is a short-term problem that will be rectified by the introduction of Section 318.
Baroness Whitaker
Will this be explained in some kind of advisory note or guidance, so that at least the Gypsy, Roma and Travellers’ representatives will know what the law is?
Baroness Hanham
This is obviously very important, and whatever advice goes forward will be recorded in Hansard. I know that probably they do not read it very closely, but somebody might. But it will be made clear that that is the situation.
Arbitration agreements were brought up by the noble Lord, Lord Avebury, and the noble Baroness, Lady Whitaker. As we understand it, very few agreements are subject to arbitration. These are mostly for park home sites, not Gypsy and Traveller sites, so arbitration will not be a huge problem from that point of view. The arbitrator’s function has been moved to the residential tribunal, and is likely to come up on termination or possession. If an agreement is subject to arbitration, the transfer is to the tribunal for termination not possession, but an arbitration provision has to be agreed to by the resident. If there is no agreement at all, termination—and by that I include possession—will be dealt with in the court. So there is a route to court in this matter.
Baroness Whitaker
The problem is that a contract or agreement will be drawn up by the local authority with the arbitration provision, and the tenant or caravan occupier may not realise that that completely ousts all possibility of their taking an unresolved dispute after the tribunal to the court. How could that be tackled?
Baroness Hanham
Let us go back to possession. Only a court can grant possession, so the tribunal proceedings would not deal with possession. It is always dealt with in the courts. My previous remarks referred to termination, where, if there was no agreement by the resident, it could go to court. By both routes it can end up in court, but with possession it starts and is completed in court. You cannot have possession that does not go through the courts.
I was fascinated to learn that the noble and learned Lord, Lord Scott, was on the Merits of Statutory Instruments Committee. The way in which it is laid out, there were no challenges from the committee—I am sorry, from the JCSI—on this matter. My advice is that there is no need for a notice period to be specified, because the Caravan Sites Act 1968 already provides that the occupier on quitting early must give four weeks’ notice. That requirement has not been changed. Terms of occupation will be set out in a written statement, which will be given to the occupier who is coming on for three months.
Lord Scott of Foscote
These statutory instruments provide that the occupier has to give four weeks’ notice if he is terminating an agreement relating to a permanent site. The provision relating to a transit site does not include any requirement for the period of notice. That distinction must mean something—it must mean that no period of notice must be given.
Baroness Hanham
All I can say is that in the consultation local authorities said that in practice they did not expect occupiers of transit pitches to give much or any notice. The question was how much notice they had to give on departure from the pitch. So if they take up to three months or if they have a three-month agreement or if they have four weeks, it does not matter whether they give notice or not; they can just tip off. I am sorry if I am misunderstanding you.
Lord Scott of Foscote
Forgive me. These statutory instruments, if brought into effect in the terms in which they are now cast, constitute the law. What the practice is between many local authorities and many occupiers of these sites is another matter. This constitutes the law and it needs to be understandable and coherent as the law. At the moment, Chapter 4, which deals with permanent sites, says that the occupier must give four weeks’ notice; Chapter 3, which deals with transit sites, says simply that written notice must be given without any reference to any period.
Baroness Hanham
Forgive me. It would have been helpful to have had notice of what is clearly a legal matter, but if we can adjourn for five minutes we will try to sort it out. I apologise for not being able to answer straightaway.
Baroness Hanham
My Lords, my noble friend Lord Attlee has made a proposal to noble Lords that, since this clearly needs sorting out legally, I should undertake to write to all Members of the Committee with a legal answer and that we will not have the order moved on the Floor of the House until noble Lords have seen that and are satisfied with it.
Lord Scott of Foscote
Forgive me, but there was another important point on paragraph 4 of Chapter 3.
Baroness Hanham
Could we cover the whole lot in the same letter? I shall just say, quite mournfully, that it would be really helpful, where there are clearly legal points, to have notice of them. I would have ended up not looking quite so unprepared and noble Lords would have had an earlier answer.
Lord Scott of Foscote
If the Minister, or whoever deals with these things at the department, wants to talk to me about it, that is fine.