Proposed separation of fact and law…

The DCLG have issued a consultation paper on ‘dispute resolution’ under the (to be) amended Mobile Homes Act 1983 (which will also have effect for Travellers) The consultation paper can be downloaded from us [PDF]. How to respond is at the back of the document, but responses are required by 9 June 2009 (!)

Amongst the suggestions is the frankly bizarre suggestion that “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. The DCLG suggests this as a means of addressing residents’ concerns that landlords bring proceedings as a threat or bullying tactic

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.

On a charitable view, it might just be that this hasn’t really been thought through. For example, the division would see no legal aid available to residents for the ‘fact finding’ tribunal. And how on earth does one manage a clear cut divide between factual and legal issues in a possession case, without the facts effectively being re-heard in legal argument, so further delay, duplication of effort and expense.

The Travellers Advice Team at Community Legal Partnership have put in what might be described as a robust response, downloadable here [.doc]. Others are welcome to respond – but quickly, 9 June…

Given that this is coming from the DCLG, there also the worrying prospect that this represents broader thinking on housing disputes and the tribunalisation of possession or disrepair proceedings.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , .

5 Comments

  1. I don’t believe that the rent assessment panel based tribunals are anything like as safe or reliable for important issues affecting someone’s home as the county court. In my experience case management is done very poorly indeed – they just don’t seem to get it.

    Examples:

    (1) We put in an application, the case management order was for us to put in our argument, then the respondent to file their response with their argument and the matter be dealt with on the papers. In other words we had to put in our skeleton argument without seeing a defence. Total nonsense. Anyone coming up with such a thing shouldn’t sit as a moot judge for school children.

    (2) Application by local authority affecting a vast number of leaseholders (most in the authority’s area). The LVT (in this case) is obliged to serve the application on the leaseholders, although it has a power to advertise in a local newspaper (designed for just such a circumstance). What did they do? They made a case management order that any leaseholder who wished to respond to apply by a particular date.

    A defendant has to proactively apply to be a party without necessarily being informed of the case? Franz Kafka would be proud.

    And it goes on.

    What RAP’s are good about is knowing about the valuation of land. They have built in expert knowledge and experience of it. A classic RAC decision on rent can be dealt with quite well if its fairly typical. But really….

    Don’t get me wrong. I know some excellent chairs of tribunals, the problem is that the system as a whole does not deliver the quality of justice we would need.

    Split jurisdiction of fact and law? That really does sound like we are going back to the middle ages.

    • In fact why don’t we just get the sheriff to impanel a local assize, have them find facts and have the high court deal with any questions of law on Nisi Prius. Bah.

    • Thanks to Francis for that. And if anyone wants a copy of the CLG paper and the very calm and mild mannered response from the Travellers Advice Team please e-mail me at chrisjohnson@communitylawpartnership.co.uk
      When it comes to Gypsies and Travellers, New Labour have moved things on but often in a slow and strangely reluctant way. It was New Labour who fought the Connors case all the way to the ECtHR in 2004 (when they finally got the hammering they deserved).Then they spent three years deciding that the best thing to do was to amend the rogue clause in the Mobile Homes Act 1983 that precluded local authority Gypsy/Traveller sites from protection – gosh, that was a stroke of genius! Now, just as we think that finally Gypsies and Travellers on such sites (who often live in fear of trying to enforce any of their rights in case they get evicted) are going to get proper protection, they come up with a completely bizarre method of avoiding that terrible possibility i.e. that they should make the dreadful mistake of giving Gypsies and Travellers proper security of tenure. By the time they have concluded the latest consultation process…and had lots more meetings….in very posh offices…it will be time for the General Election…and then!!!!!!!!!!
      Really either they should bring in proper protection now or else we will have to return to Europe on behalf of our clients (again) and we might as well have the Monster Raving Loonies in power!
      Chris Johnson (Travellers Advice Team)

    • Chris: I’m impressed (and grateful) at what you do for travellers. I studied the law about some years ago (I considered doing a masters thesis on human rights and travellers – not very original I know). I was struck by how enormously unjust their situation is. Someone (I think Marc Willers – but I could be wrong) pointed out that its not enough to say that (for example) putting a caravan on a site breaches planning permission, one has to think why the various levels of plan exclude the caravans in the first place and that is because (it seemed to me) a lack of political clout by the travellers at the stage the plans are devised.

      The idea of having lots of housing dealt with by tribunals (why on earth?) seems to be popular in government. Perhaps (being charitable) on the mistaken belief that tribunals are somehow easier to access than courts (the opposite being the case in my experience). But if that is so it may be this idea is an attempt to trial it with travellers rather than pushing the whole of housing law onto the RPT.

      Maybe somewhere some policy maker has it in their head that most of possession proceedings are factual decisions (eg reasonableness) and that law is just a bit of technicality that will only come up once in a while for which we can reserve our district judges.

      I could be completely wrong. I am not in touch with government thinking on this, I suspect that other nearly legal team members will be more in touch.

  2. The government have now published their response to the consultation on this issue – see Communities and Local Govt ‘ Further consultation on termination provisions in the MHA 1983’ December 2009 available at http://www.communities.gov.uk
    They have, much to the relief of those representing Gypsies and Travellers, left actions under MHA 1983 Sched 1 Part 1 para 4 (breach of licence – far and away the most common form of possession action which encompasses, of course, rent/licence fee arrears and nuisance) and para 5 (only or main residence) in the county court. Bizarrely actions under para 6 (mobile home detrimental to the amenity of the site) will have the so called ‘factual part’ dealt with in the RPT and the ‘legal part’ dealt with in the county court. So still scope there I would have thought for an article 6 challenge??
    And there is still no sign of the draft regulations that will be required before the MHA is finally applied on local authority Gypsy/Traveller sites despite the fact that we are getting on for six years since the Connors v UK judgment!!

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