Local authority duties towards homeless Gypsies and Travellers

Local authorities have a duty to accommodate certain homeless people under Part 7 of the Housing Act 1996. Some of the legislation is particularly applicable to Gypsies and Travellers.

A person is homeless if their accommodation 'consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it'.[1] Case law has established that the words 'entitled' and 'permitted' have a broad meaning. For example, in one case, the applicants had parked without permission on local authority land for two and a half years. However, the authority had not taken any action against the applicants. Therefore, the court decided that they were not homeless, as the lack of action amounted to 'permission'.

See Homelessness application process for information on homelessness legislation.

Case law has found that the correct test to be applied when determining priority need is whether the applicant is significantly more vulnerable than an ordinary person if made homeless and likely to suffer greater harm as a result.[2] In one case, Travellers had argued that they were vulnerable for 'other special reasons' because, as Travellers, they were statistically more likely to be homeless than the general population, and had less chance of finding accommodation due to the lack of authorised sites. However this case failed as the judge held that the vulnerability test is about the ability of the individual to deal with homelessness, not on the likelihood of them remaining homeless.[3]

Homeless as a result of an emergency

An applicant will have an automatic priority need if they are homeless or threatened with homelessness due to 'an emergency such as flood, fire or other disaster'.[4] The courts have held that the loss of a caravan (for example through theft) can constitute an emergency for the purposes of the legislation, and therefore lead to a finding of priority need.[5] However, in the case in question, it was decided that the applicant was already homeless because his caravan had been parked on an unauthorised site: therefore, he had no place where he was entitled to place it. As he was already homeless, he could not have become homeless through an emergency; therefore he was not in priority need.

Travellers who have moved around the country may have difficulty in establishing a local connection. If a Traveller has no local connection with any authority they can apply to the authority of their choice and cannot be referred to another authority. In any event local authorities should be encouraged to use their discretion to accept a duty towards the applicant rather than referring them to another authority's area.[6]

An applicant can have a local connection if they have a family association in the area.[7] 'Family' under this provision usually refers to parents, siblings and adult children who have lived in the area for five years or more, and other relatives are only considered in 'exceptional circumstances'. The importance of the extended family to many Travellers is not taken account of in this provision, and again, local authorities should be encouraged to use their discretion and to judge each case on its own merits.[8]

The Children Act 1989 places a duty upon social services authorities to safeguard and promote the interests of children in need. Section 17 of the Children Act 1989[9] includes a power to provide accommodation[10] to children in need – for more information see the section on Young people and care leavers. It may be possible to argue that when Traveller families are threatened with eviction then the children are 'in need' and the whole family should be accommodated by social services under this section. Section 20 of the Act includes a duty to provide accommodation to children in need whose welfare is likely to be seriously prejudiced if the authority does not provide them with accommodation.[11] However this duty applies to the child only rather than the whole household. Offering to house only the children is an option,[12] but social services cannot force this unless there is clear evidence of a risk of abuse and a court order has been obtained.[13]

Travellers who are being evicted from local authority land could seek legal advice to challenge the eviction by way of judicial review on the basis that councils should take into account any obligations they owe to Travellers' children before making an order.[14]

When providing accommodation following a successful homeless application, local authorities must ensure that the accommodation is suitable for the needs of the applicant and their household.[15]

The provision of land, on which a Gypsy/Traveller would be able and willing to station their caravan, would be a discharge of the duty to provide suitable accommodation. However if there is no land available on which to lawfully station a caravan, the local authority can provide 'bricks and mortar' accommodation providing it satisfies the Wednesbury minimum level of suitability (ie it is a decision that is not irrational or perverse).[16] It is outside of the scope of a homelessness review into the suitability of the provision of 'bricks and mortar' accommodation to a Gypsy/Traveller family to conduct an inquiry into the adequacy of site provision and the planning policies of the authority.[17]

There are a number of definitions, governing different areas of law, that apply to Gypsies and Travellers.

Ethnicity

Romany Gypsies are recognised as a separate ethnic group for the purposes of the Equality Act 2010 (and from before 1 October 2010 for the purposes of the Race Relations Act 1976).[18] Irish Travellers are also recognised as a separate racial group.[19] A person will be defined as a Romany Gypsy or Irish Traveller as a result of being born or marrying into a traditional Romany Gypsy or Irish Traveller family. Local authorities have a duty to eradicate unlawful discrimination and to consider the effect of any proposed policies on ethnic minorities.[20]

Gypsy status

In order to benefit from any positive Government guidance on provision for Gypsy and Travellers it is necessary for that person to have what is referred to as 'Gypsy status'.

Government's guidance for local authorities on the planning aspects of the provision of traveller sites is set out in the Planning policy for traveller sites and defines Gypsies and Travellers as:[21]

'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, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.'

The policy requires that when determining whether a person has Gypsy status, local planning authorities should consider:[22]

• whether that person previously led a nomadic habit of life

• the reasons why they ceased their nomadic habit of life

• whether they have an intention of living a nomadic habit of life in the future, and if so, how soon and in what circumstances.

The original statutory definition of a Gypsy was contained in the Caravan Sites and Control of Development Act 1960,[23] and is reiterated in the legislation concerning the scope of the Mobile Homes Act 1984,[24] where a Gypsy is defined as a 'person of nomadic habit of life, whatever their race or origin'. The Court of Appeal imported into the word 'nomadic' the concept of purposeful travel (including work), economic independence and (to a degree) a tradition of travelling in cohesive groups.[25]

The local authority must,[26] when undertaking a review of housing needs in their district, carry out an assessment of the accommodation needs of Gypsies and Travellers, where the definition that applies is:[27]

'(a) persons with a cultural tradition of nomadism or of living in a caravan; and

(b) all other persons of a nomadic habit of life, whatever their race or origin, including –

(i) such persons who, on grounds only of their own or their family's or dependant's educational or health needs or old age, have ceased to travel temporarily or permanently; and

(ii) members of an organised group of travelling show people or circus people (whether or not travelling together as such).'

Using the above definitions, it is possible to include New Travellers in the definition of gypsy status.[28]

Definition of a caravan

A caravan is defined as 'any structure designed or adapted for human habitation which is capable of being moved from one place to another... and any motor vehicle so designed or adapted'.[29]

Find out more about mobile home occupiers.

The Community Law Partnership's Travellers Advice Team (TAT) provides advice, assistance and representation to Gypsies and Travellers throughout England and Wales in the following areas:

• evictions

• planning

• matters involving rented sites

• homelessness

TAT's service includes a dedicated Gypsy and Traveller Helpline, which is available on 0121 685 8677 between 9.00 am and 5.00 pm Monday to Friday. There is also an out-of-hours emergency number solely for emergencies concerning Gypsies and Travellers, which is 07768 316755. Contact the Gypsy and Traveller Helpline for details.

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.