Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011

Lord Avebury Excerpts

Wednesday 2nd March 2011 Grand Committee

There are approximately 85,000 households on 2,000 park home sites, and 4,500 Gypsy and Traveller pitches on local authority and county council-owned land in England, to whom these new rights and procedures will apply. The orders offer and provide fairness and a level playing field between these residents and their site owners while not imposing unreasonable burdens on business or local authorities. They have been long awaited. I therefore commend them to the Committee.

[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.

--- Later in debate ---

[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.