The Community Law Partnership | Social Welfare Lawyers in the Centre of..
The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. We aim to provide quality legal services to the most vulnerable and disadvantaged sections of society who, without our assistance, would be denied access to the legal system and to their rights.
The Committee did not set out to tackle issues relating to Traveller sites or encampments but to tackle a wide range of other policy issues often eclipsed by issues of accommodation. Given that three in four Gypsies and Travellers live in non-caravan accommodation, we are deeply concerned that Government policy-making is overwhelmingly focused on planning and accommodation issues.
While we fully appreciate the need to address the inequalities faced by Gypsies, Roma and Travellers in housing and whilst we fully support the recommendations of the Committee (quoted below), we are very disappointed with the failure to address the dire accommodation needs for those living in caravans. Large numbers of the Gypsy and Traveller community are still having to resort to unauthorised encampments and unauthorised developments due to the failure of central and local government to ensure that there is adequate site provision. We believe that all Gypsy and Traveller support and campaigning groups recognise that, if you deal with the accommodation problems, this will inevitably lead to improvements in education, health and employment outcomes. An opportunity to drive that point home by this very influential committee has been missed.
Additionally we wish the Government really were ‘overwhelmingly focused on planning and accommodation issues’. The Government seems to be mainly interested in increasing enforcement powers ( see: http://www.communitylawpartnership.co.uk/news/all-we-need-are-sites ).
Nevertheless, as we say above, we welcome the recommendations in this report and congratulate the Committee and those who assisted the Committee for their hard work in producing this very comprehensive document.
We recommend that the Cabinet Office create a specific workstream within the Race Disparity Unit for eliminating Gypsy and Traveller inequalities. The Unit should work closely across Government departments to ensure that the “explain or change” process is completed promptly and that every Government department has a strategy to tackle Gypsy and Traveller inequalities that are uncovered. Each department should have a strategy in place before the end of 2019. Because of a lack of statistical data, disparities that have been uncovered in academic research must be incorporated into this work and included as part of the Race Disparity Audit programme. (Paragraph 41)
Gypsy, Irish Traveller and Roma categories should be added to the NHS data dictionary as a matter of urgency. (Paragraph 49)
The Race Disparity Unit should review all the Government and public datasets that currently do not use the 2011 census ethnicity classifications and require their use before the end of 2019. (Paragraph 50)
The Ministry of Housing, Communities and Local Government should work with grassroots Gypsy, Roma and Traveller organisations to formulate a wide-ranging campaign to explain the importance of collecting such data and to encourage self-disclosure. (Paragraph 53)
The Department for Education should carry out a complete audit of all local authorities to ensure that they have robust policies and procedures on children potentially missing from education, as required by section 436A of the Education Act 2006 and the Government’s own “Children Missing Education Guidance”. Any local authorities that are found to have inadequate processes should be required to remedy them within six months of the audit. The audit should also inspect the procedures that authorities have in place for ensuring that home educated children are receiving a “suitable” education, including effective mechanisms for taking action under section 437 of the Education Act. (Paragraph 66).
The need for reform affects all home educated children but Gypsy and Traveller children are more likely to be withdrawn from education. We agree with Children’s Commissioner that families that are home educating need more oversight from local authorities. We also recommend that council officers should be given the power and have the duty to visit children being home educated at least once per school term to assess the suitability of their education. Education should only be deemed “suitable” if it provides equal life chances to boys and girls and gives all children the necessary tools to decide on their own futures as adults. (Paragraph 67)
The Government should consider piloting a pupil passport scheme with rapid evaluation to ensure that, should it be successful, it can be rolled out as quickly as possible. At the same time, the Department for Education should explore how such a scheme could be implemented across England and what the budgetary implications would be. Such a scheme would ensure that when children move schools or move into home education, their records and history travel with them. (Paragraph 71)
Schools should, as part of their responsibilities under the Public Sector Equality Duty, be challenging race and gender stereotypes wherever they encounter them. Ofsted should ensure that inspectors are actively inspecting schools for gender and racial stereotyping or signs of sexism or racism from either pupils or staff. (Paragraph 77)
The Equality and Human Rights Commission should conduct a formal inquiry under section 16 of the Equality Act 2006 into how Joint Strategic Needs Assessments are including Gypsy, Roma and Traveller health needs. (Paragraph 95).
Maternity and antenatal care provide an opportunity for healthcare staff to support Gypsy, Roma and Traveller women. NHS England should consider training maternity staff and pre-natal staff to enquire about, signpost and refer to services that may also be beneficial to Gypsy, Roma and Traveller women, including immunisation, dental services, mental health services and sexual health checks. (Paragraph 107).
Local authorities should inspect every existing private Traveller site in their area to map which have access to a minimum standard of basic amenities and which do not. For those that do not, local authorities should place conditions upon the license to ensure that these measures are put in place or consider revoking licenses that do not comply with these conditions. This solution does not address the problem that arises when it is the local authority itself that owns the site. For this, we recommend that the Ministry of Housing, Communities and Local Government explore methods by which local authorities can be held to account for their own sites. (Paragraph 111)
It is unfortunate that the Committee did not point out that it may be possible for residents to take action where there is a ‘statutory nuisance’, including action against a local authority, under Environmental Protection Act 1990 s82.
Discrimination and Hate Crime
While we heard mixed evidence about the effectiveness of training, we believe that training can be effective if it goes beyond “awareness raising” and trains frontline staff on their duties under the Equality Act as well as on cultural competence. We also believe that what has been lacking in some of these organisations is a zero-tolerance approach from organisation leaders. We recommend that senior leaders in all public service bodies be trained in the Public Sector Equality Duty and that each body have a Gypsy, Roma and Traveller “champion”, similar to the role that exists in the National Police Chiefs Council. (Paragraph 148)
It is regrettable that many in the Gypsy, Roma and Traveller communities feel that discrimination is inevitable, and they must tolerate it. The Government should work with community organisations to train Gypsy, Roma and Traveller individuals to understand their rights, identify discrimination and to give them the tools to take legal action to challenge discrimination. (Paragraph 150)
It is unfortunate that the Committee did not point out the problems caused by the lack of legal aid for discrimination cases (apart from a telephone advice system which has been heavily criticised for being ineffective).
The Home Office should work with GATE Herts, with a view to creating more physical reporting sites, and should train community organisations to encourage Gypsy, Roma and Traveller people to report hate crime when it occurs. (Paragraph 157)
All we would say here is – ‘well done, GATE Herts’!
Violence against women and girls
Local authorities should ensure that Gypsy, Roma and Traveller women have access to a single, trusted contact who provides them with the information and support they need. Should this contact be from a charitable organisation, local authorities must ensure that the organisation has sufficient funding to sustain the necessary support. (Paragraph 168).
A lack of awareness of consent culture and healthy relationships is leading to domestic abuse in young Gypsy and Traveller people’s lives. Both boys and girls need to be taught what abuse is and how to challenge it. All primary schools in England should ensure that they have lessons on consent and respect included in relationship education and these messages should continue through into secondary school. Gypsy and Traveller organisations should be among groups involved in the development of these classes and could, where appropriate, deliver the lessons. (Paragraph 172).
We have heard of effective work that community organisations are doing working with Gypsy and Traveller men and women to challenge outdated attitudes towards women. The Home Office should work with these organisations with a view to funding similar programmes across the country. (Paragraph 173)
In conclusion, we warmly welcome this very important report and we hope that Government will take notice (at last) of the recommendations, though we are not holding our breath!! However we must repeat how disappointed we are that the very serious and continuing accommodation problems for those on unauthorised encampments and developments, at a time when the Government are trying to increase enforcement powers, have been ignored.
You can find the full report here: https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/360/full-report.html
The review is deeply disappointing. Some matters are said to require further review or research. Those changes that are going to be brought in are relatively minor in the scale of things.
Speaking of the Review, Lord Bach, former Labour justice minister and author of the Bach Review ( see: http://www.communitylawpartnership.co.uk/news/bach-commission ), stated:
[LASPO] represents in concept and in practice a pretty fundamental attack on the concept of access to justice. Less justice, less advice, less practitioners, less students who have to study social welfare law as part of a law degree, more deserts, more citizens unaware of their rights, more lives that have had to suffer. Why all that? Just because the government of the day completely failed to grasp and understand that the law that gives justice to those who have the least is in some ways even more important to a decent legal system than the law that gives justice to those who have the most. Part one of LASPO remains, despite the review, a scandal. How disappointing the government did not have the courage to change it.
See ‘LASPO review a ‘missed opportunity’, says former justice minister’ https://www.lawgazette.co.uk/law/laspo-review-a-missed-opportunity-says-former-justice-minister/5069776.article?utm_source=dispatch&utm_medium=email&utm_campaign=%20GAZ141016
In terms of the work that we do at CLP the fundamental problems caused by LASPO and subsequent reforms remain untouched:
1. Judicial review
During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were settled prior to permission being dealt with and were settled successfully. Despite this, the Government brought into force provisions which mean that legal aid providers will not be paid on a judicial review application unless either permission is granted or the matter is settled prior to permission without costs being awarded to the claimant and the Legal Aid Agency exercises their discretion in favour of the provider. This has resulted in many providers no longer being willing to run judicial review cases.
2. Unauthorised encampments
As is well known, a significant proportion of the Gypsy and Traveller population who live in caravans have no alternative but to resort to unauthorised encampments due to the totally inadequate national supply of permanent and transit pitches and emergency stopping places. Prior to the bringing into force of the LASPO Act 2012 in April 2013, when a local or other public authority took eviction action in the county court, a Gypsy or Traveller facing such action who believed the action was unlawful (e.g. due to a failure to make welfare enquiries in line with government guidance and case law) could defend the action in the county court.
LASPOA 2012 left matters involving ‘loss of home’ in scope for legal aid but excluded from the definition of ‘loss of home’ trespassers such as Gypsies and Travellers on unauthorised encampments (in fact, it might be speculated that this exception was specifically created to target Gypsies and Travellers). Thus Gypsies and Travellers who want to challenge such action have to lodge a judicial review application in the high court and seek a stay of the county court action. A much less sensible and much more complicated route.
3. Housing law
The Low Commission on the Future of Advice and Legal Support was established to develop a strategy for access to advice and support on Social Welfare Law in England and Wales. The Low Commission was chaired by Lord Colin Low and was made up of eight other Commissioners with expertise in this area. The Low Commission was independent of Government, political parties and advice providers. The Low Commission called for the return of legal aid in Housing Law cases (see Low Commission Tackling the Advice Deficit, January 2014). For example, if legal aid was available for rent arrears cases (rather than just being available for cases where eviction action is threatened or has commenced) then many matters could be resolved before any eviction action was taken.
4. Exceptional funding
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on Section 10 of the Bill, the possibility of exceptional funding (EF).It was stated that this would act as a vital safety net. EF is intended to ensure that the failure to provide advice and representation to someone does not result in a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing) and does not breach European Union Law. EF is still only granted in about 50% of cases.
EF ought to be available to cover matters involving: Traveller planning inquiries; disrepair issues on Travellers’ sites which need to go to tribunal; demoted tenancy cases.
Many, many hours of solicitors’ and advisers’ time has been spent (and wasted) in attempting to get EF. It is absolutely clear to us that, in these cases, Article 6 is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (the case of Airey – v – Ireland refers).
These are just a few examples of the fundamental problems that remain and which are not addressed by the LASPO Review.*
*There is a proposal to simplify the EF process but we do not believe this will have any significant effect on the EF system as it stands.
The final hearing of the case is to take place in the High Court in London on May 15th. For more information on the case, see https://www.travellerstimes.org.uk/news/2019/02/court-challenge-bromley-anti-traveller-camp-injunction-set-new-date
1. What are these wide injunctions / how do they work?
Wide injunctions are orders which prevent certain activities taking place on certain pieces of land. They are ‘wide’ because they cover multiple pieces of land in the ownership of the applicant local authority and also because they are not made only against specific individuals, as most court orders are, but against ‘persons unknown’, which potentially includes the whole world. The activities which are the focus of such injunctions include not only obviously anti-social behaviour such as fly-tipping but also non-criminal behaviour such as camping in caravans.
2. Why are councils using them?
Councils are justifying applications for wide injunctions on the basis of anti-social behaviour which they find difficult to control. They argue that if an injunction is in place then it will act as a deterrent because, if a person breaches the injunction, that could result in him or her being committed to prison for contempt.
However, opponents of such measures argue that if councils wanted to deter the perpetrators then they could identify them more specifically and limit the injunctions they seek to anti-social behaviour.
3. How do the injunctions affect the rights of Gypsies and Travellers?
We need briefly to explain the background and context.
Romani Gypsies and Irish Travellers are recognised ethnic minorities under the Equality Act 2010.
Living in caravans is an integral part of the traditional way of life of both Romani Gypsies and Irish Travellers.
Gypsies and Travellers have been camping on common land in the UK for centuries. However, in the 1960s legislation was passed which prevented them from doing so. Instead, councils were required to provide sites for them. It is widely acknowledged, though, that too few sites were built and little was done by successive governments to force councils to comply with their obligations. The result is that there is now an acute shortage of sites.
Without sites, many Gypsies and Travellers are forced to live a wholly nomadic existence dwelling on the roadside and on other unauthorised sites. Such families are moved on regularly without the opportunity to get their children into school or to access proper healthcare. They suffer the worst health outcomes and their children have the lowest levels of educational achievements of any minority group.
As public bodies, local councils have a duty to take account of considerations of common humanity and to undertake welfare enquiries before deciding whether or not to evict Gypsies and Travellers who are camping on their land.
They have a variety of enforcement measures they can use but they must act humanely and consider whether an encampment can be allowed to remain. It may be appropriate to do so where an encampment is in an unobtrusive location, causing no disruption, and can be managed, for example, with the provision of portaloos and rubbish collection. Many councils manage such encampments in this way, knowing full well that the families have nowhere else to go and need a place to stay – perhaps to visit relatives, go to hospital, or attend a funeral in the area, or just as a port in a storm and as respite from the continual cycle of eviction.
Wide injunctions against ‘persons unknown’ will prevent innocent Gypsy and Traveller families with nowhere else to go from being able to camp on council land at all, at a time when there is an acute shortage of sites because the very same councils have failed to make adequate provision. Opponents of such injunctions argue that it is grossly unfair and inequitable to penalise and demonise all Gypsies and Travellers for the anti-social behaviour of a few. It fails to respect the Gypsy and Traveller way of life and undermines the obligation on councils to facilitate the Gypsy/Traveller way of life.
These injunctions are being sought by councils in London and all over the country and it is feared that if they are granted then Gypsies and Travellers will have nowhere to go – they will be driven into the sea!
4. What is happening at the upcoming hearing and what could the outcome of that be?
At the hearing, we will explain the context in which the injunction is being sought and its effect on innocent Gypsy and Traveller families. We will ask the Court to limit the reach of the injunction, so that it only covers named individuals or those that can be readily identified and does not cover everyone. We will also ask the Court to give guidance on the principles to be applied by other courts when such injunctions are contemplated so as to ensure that the rights of Gypsies and Travellers are sufficiently protected and their traditional way of life is accorded due respect.
Did the doctrine of illegality apply in M’s favour? This was the central question for the Court of Appeal. The Court of Appeal concluded that even if the doctrine of illegality were to apply, it would simply invalidate the registration and could not undo the fact that F and his father had been in possession for the requisite period of time to gain first possession of the land. The Court of Appeal concluded that even criminals and scoundrels were entitled to the benefit of limitation periods.
In a previous case run by CLP, R (Smith) v The Land Registry  3 WLR 1223 – see under Leading Cases on our website – the court at first instance had decided that Mr Smith should not been able to gain adverse possession of the highway he had lived on for more than 12 years because he was obstructing the highway which was an offence. The case of Rashid suggests that, in any future adverse possession of a highway case, this issue may have to be re-visited. See also the case of Port of London Authority v Mendoza which is on our website at:- http://www.communitylawpartnership.co.uk/?s=Mendoza.
The United Kingdom Government has still not established a National Roma Integration Strategy despite both a number of recommendations in international treaties (which urge the UK Government to do so) and repeated questions by Gypsy, Roma and Traveller NGOs. The UK Government continued to hold to the position that mainstream laws and policies already offered protection to GRT populations and will in themselves promote integration – although this is not the experience of community members and their representative organisations interviewed for both the 2014 and current reports. Accordingly, GRT communities continue to be marginalised, with attempts to meet their needs and foster their integration being piecemeal and poorly funded….
The 2011 Census included, for the first time, a “Gypsy or Irish Traveller” ethnic group category, but there was no specific category for “Roma” although “Roma” is among four potential additional categories for the 2021 [Census]. It is evident that there is inconsistency in data collection with regard to Gypsies, Roma and Travellers in official data sets (p7).
The only clear Roma Integration Strategy to date has come from the Welsh Government, who recently undertook a consultation on whether specific proposals are required to support the inclusion of migrant Roma (p16).
The situation [with regard to the definition of Gypsy/Traveller] has now even worsened compared to… the definition from the Circular 1/2006 on Planning for Gypsy and Traveller Caravan Sites [which] was changed so that Gypsy and Traveller people cannot express the desire to live permanently on their own land – the words “and permanently” have been removed from that 1/2006 definition. This revised definition has a very detrimental effect in that Romany Gypsy people or Irish Travellers who may lead a more settled existence, are denied the prospect of pursuing careers of a professional nature, thereby effecting the career choice in younger people (e.g. doctor or solicitor), as they would then be deemed not to be Gypsies for the purposes of planning law. It does potentially force individuals to choose between living traditionally with their family or having to move into a house to pursue their desired employment. This is a very difficult decision for those with elder parents and/or relatives. This policy does restrict the community to low paid manual work (pp23-24).
While there has been little research into the accommodation needs and experiences of Roma communities, it is evident that Roma are often located in poor and deprived areas and because of the shortage of social housing, tend to end up renting in the private sector, with unscrupulous landlords charging Roma tenants high rent for low quality and overcrowded accommodation. Government policies are often making it worse. For example, lack of access to Housing Benefit means that families are often forced to live in the cheapest housing in [overcrowded] conditions as they cannot afford higher rates (p27).
Further to this, recent reports from Friends, Families and Travellers illustrate the difference between MHCLG and Homes and Community Agency’s (HCA) reported numbers of new socially rented pitches and actual number of new pitches. Key findings include:-
• There has been only a 2% increase in socially rented pitches between 2010 and 2017; an insufficient number to address even natural growth through household formation, let alone a historic lack of pitches for Gypsy and Traveller families
• The government reported an increase of 551 affordable pitches for Gypsies and Travellers between 2012 and 2017 but the actual figure is no more than 339
• 60% of caravans in the July 2017 national caravan count were on unauthorised land, largely as a result of the chronic shortage of Gypsy and Traveller sites…
• Gypsy and Traveller families who do not have access to sites due to the national shortage can also struggle to access clean water, sewage disposal and electricity. This issue is rarely discussed and therefore is to an extent made invisible (p28).
Amongst the recommendations in the report is one relating to Legal Aid:-
A Review of recent changes in Legal Aid is needed. Cases including housing and immigration are in relation to some of the most vulnerable families and they have been left with little justice (p37).
We recommend that people read this important report.
The issue before the Supreme Court was, whether the respondent was entitled to treat the appellant as intentionally homeless on the basis that part of her income from subsistence benefits was available to meet the shortfall between her contractual rent and the housing benefit awarded to her, and whether sufficient reasons were given for this decision.
The barristers for Ms. Samuels were James Stark and Tom Royston of Garden Court North Chambers and the case was run by Mike McIlvaney (previously run to the Court of Appeal by Des Smith for us, before he retired).
Shelter and CPAG intervened in the case and their Barristers were, Martin Westgate QC and Conor Johnston.
As the Supreme Court made clear, a tenant entering into an assured shorthold tenancy agrees to the terms – clearly set out in the 1988 Act – under which it could be brought to an end and if, once it comes to an end, he or she could require a Court to conduct a proportionality assessment before making a Possession Order, the resulting impact for the private rental sector would be wholly unpredictable and potentially very damaging. Furthermore, the Court notes that the domestic legislation has, in fact, made provision for cases where exceptional hardship would be caused by requiring possession to be given up within 14 days of the making of an Order; in such cases the courts may postpone the giving up of possession for up to 6 weeks after the making of the Order…Therefore, while the applicant’s particular circumstances are undoubtedly deserving of sympathy, having regard to the considerations set out above they cannot justify the conclusion that in cases where a private sector landlord seeks possession, a residential tenant should be entitled to require the Court to consider the proportionality of the Possession Order (paras 43-45).
It would appear that this reasoning would also apply in cases involving Gypsies and Travellers on unauthorised encampments on private land. However, it should be noted that the ECtHR have approved the possibility of a suspension of an order where there are exceptional circumstances and we would argue that the previous Court of Appeal authority (McPhail – v – Persons Unknown  3 All ER 393) which held that you could not suspend an order against trespassers must no longer be applicable.
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We are seeking to recruit two experienced and dedicated housing lawyers to join our award winning, friendly and supportive team. Hours of work:- 9.00 am to 5.30 pm Monday to Friday. To apply:- go to our website at www.communitylawpartnership.co.uk under noticeboard/vacancies and download the application form and email it to email@example.com. (Alternatively, if you require a paper copy sending in the post please telephone our office on 0121 685 8595 and we can send one to you).
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