4 Fit and proper person test
50. A number of organisations, including local authorities,
industry bodies and park home owner campaigning groups have called
for the worst offenders to be excluded from the park homes sector.
They argue that when site operators can be shown repeatedly to
act aggressively or with intimidation or when they persistently
breach licence conditions or block sales they should be prevented
from operating in the sector. Sonia McColl, from the Park Home
Owners Justice Campaign, described the worst owners:
I have telephone calls and emails every day with
regard to it. I have instances of more passive harassment, if
you like, i.e. park owners sitting outside the house in cars with
blacked-out windows and the engine being revved up; causing a
disturbance; and sending threatening letters of eviction for no
real reason whatsoever. The worst cases involve brandishing chainsaws
outside the house when residents return; sending in thugs-about
which I have given you information today-to throw paint over houses;
breaking car windows; putting paint inside; and threatening elderly
and disabled people. All of the letters I have received are in
files for you. One disabled gentleman who dared to ask to see
a utility bill was threatened; he was told he would be taken to
the top field and done over. It goes on and on right across the
board, so, yes, a lot of it is going on.[71]
Maria Battle, from Consumer Focus, described similar
incidents and saw similarities between the worst offenders in
the park homes sector and perpetrators of child abuse:
My career has been in preventing child abuse, and
I can see parallels here. They will target the most vulnerable
and they will have favourites. For example, last week they targeted
two 85-year-old widows who live separately. They just walked in
and said, "You're not going to join the residents' association,
are you?" They look through the window; dump stuff outside;
and spit in people's faces.[72]
Purpose of a fit and proper person
test
51. As noted in the previous chapter, the existing
licensing regime means that local authorities can rarely refuse
to grant park home site licenses and it is also very difficult
for an authority to revoke a licence. A licensing authority is
not able to take into account any information about the individual
or business applying for a licence. This effectively means that
there are no controls on people managing sites. A 'fit and proper
person' test might be used by an authority to determine whether
a site owner or manager was able to hold a licence. Epping Forest
District Council described the failings of the current system
in dealing with persistently bad owners:
[a] system needs to be in place that allows local
authorities to consider the cumulative actions of an unscrupulous
owner on one individual or more individuals. The existing provisions
for revocation of a site licence are contained in Section 9 of
the Caravan Sites and Control of Development Act 1960 which appears
to require 3 separate, previous convictions for failing to comply
with Site Licence Conditions on the same site. These convictions
must have been in the same court (S9(2) of the Act) and can only
relate to breaches of the site licence so that other previous
convictions of harassment cannot be taken into account. There
is some confusion as to whether repeat convictions, convictions
on other sites owned by the same person and/or any time limited
convictions can be taken into account.
A workable process needs to be put in place whereby
an owner can have his site licence revoked for misbehaviour. This
could be linked with the 'fit and proper person' test where failure
to meet the ongoing requirements of the test could lead to revocation
of the site licence.[73]
52. The previous Government's 2009 consultation proposed
that under a new site licensing regime a local authority should
only grant a license for a park home site to a 'fit and proper
person'.[74] Under this
proposal a licensing authority would be able to take into account
such considerations as convictions for violence, fraud, discrimination,
offences under the Mobile Homes Act, health and safety breaches
and disqualification as a company director, before issuing a site
licence. Following this consultation the Government said the introduction
of the 'fit and proper' requirement had been supported by a majority
of consultees, and that it intended to introduce this as a licence
requirement.[75]
OPTIONS FOR A FIT AND PROPER PERSON
SCHEME
53. When we put the possibility of introducing a
'fit and proper person' scheme to a number of local authorities,
they described how a scheme might work in practice. Katie Hooper,
from Bromsgrove District Council, explained how a 'fit and proper
person' test was used successfully to manage licence holders for
HMOs.[76] She suggested
that similar process could be translated onto the park home sector.
Clive Phillips, from Kent County Council, proposed that aspects
of the liquor licensing system might also provide a useful model.
In particular, the local authority's ability to attach conditions
to a licence in cases where it has been breached.[77]
Sylvia Rook, from the Trading Standards Institute, suggested that
licensing arrangements similar to those in the Consumer Credit
Act 1974 might be a better model because in determining applications
a broad set of criteria could be taken into account:
anybody who issues or deals with credit has to get
a licence issued by the Office of Fair Trading. Very stringent
checks are taken against them to make sure that they are fit and
proper. That involves communication with Trading Standards; it
is not just a matter of their criminal background but all their
associates as well. The problem is that if you just look at an
individual you do not get a good picture, and they will always
certify themselves as being a fit and proper person.[78]
54. The National Caravan Council called for a national
scheme for registered site owners to improve performance. The
park homes sector includes businesses that operate sites in different
authorities. Information on these business and the individuals
working for them might need to be shared between authorities.
Their submission says that a centralised park licensing and registration
scheme linked to a 'Fit and Proper Person' test could do this.[79]
They told us that the industry supported such a requirement. The
Office of Fair Trading suggested that a more local approach might
be better, whereby local authorities were able to ban individuals
from operating in a specific sector. They described a negative
licensing system (such as with estate agents) which operated as
a 'banning' regime, where anyone can enter the market, but enforcement
bodies can take action to exclude from the market any traders
who breach relevant rules.[80]
DRAWBACKS TO A FIT AND PROPER PERSON
SCHEME
55. Martin Fisher from Cornwall Council told us he
supported a 'fit and proper person' test but highlighted a number
of problems that must be considered:
First of all, the people who we have received complaints
about and who you have had representations about already have
a licence, so kind of retrospectively imposing a fit and proper
person test might be tricky. The fundamental power of rogue owners,
unscrupulous owners, lies in the fact that they own the land.
[...]
Then you have the issue of defining what is a fit
and proper person, or what constitutes a non-fit and proper person.
The next point is that the HMO fit and proper person
test depends, first and foremost, on self-certification. [...]
all of which diminishes the usefulness even before you get to
the point, which I think a licensing colleague made earlier, that
there will always be somebody with a clean record who will come
forward to hold the licence.[81]
56. Another issue to be addressed is what happens
if a manager of a site is found not to be fit and proper and as
a result a site licence is revoked. The point of a fit and proper
person scheme would be to improve the situation for residents,
but there is a risk that if a licence is revoked a responsible
manager might not be found and conditions on a site could deteriorate.
Trading Standards Institute suggested that where licenses were
revoked the local authority might take over management of the
site.
[W]e think there needs to be some process whereby
an individual/business who has engaged in unfair practices can
be prevented from continuing to run a site or have any interest
in one, perhaps introducing a system where the local authority
can take over the running of such a site where there are clear
matters of consumer detriment.[82]
Similar arrangements are found under the HMO licensing
scheme. A local authority can issue a management order which allows
them to take over the management of a HMO if they revoke or are
unable to issue a licence to the owner.[83]
Occupiers are then required to pay rent to the authority, which
takes over responsibility for the management of the tenancies
and the maintenance and upkeep of the HMO. In extreme cases authorities
are also able to compulsorily purchase an HMO.[84]
OUR CONCLUSIONS
57. The Government's current consultation document
does not propose to introduce a fit and proper person test.[85]
The Minster, Mr Shapps, told us that he did not consider that
a fit and proper person scheme was practicable. He said that other
measures in the consultation would achieve the same result by
driving the worst offenders out of the sector. He also argued
that HMO-type-licensing should not be applied to park home sites
because it was designed to "protect people from the kind
of health and safety risks that you get in a home in multiple
occupation".[86]
58. We understand that there are some concerns about
introducing a fit and proper person test, but we see a strong
case for a test to ensure that the worst offenders are prevented
from operating in this sector and to prevent a criminal element,
as encountered by West Mercia Police (see paragraph 16) from entering
and expanding in this sector. We disagree with the Minister's
assessment and consider that HMO-type-licensing is particularly
applicable to the park home sector, where health and safety risks
from poor maintenance are a key concern. The high proportion of
vulnerable people living in park homes deserve this additional
protection. We conclude that
a fit and proper person test could be a useful addition to local
authorities' armoury to exclude the worst offenders from owning
and managing park home sites.
59. It is, however,
clear to us that the introduction of such a test would require
a significant increase in the regulation of the sector. The Government
is confident that the reforms it proposes are sufficient to drive
the unscrupulous out of the sector. We do, of course, hope that
this would be the outcome from the Government's proposals but
we must nevertheless conclude that, if the measures prove insufficient,
the sector should not have to wait for further consultation and
then an opportunity to legislate. On current projections that
could be after 2020. This would not be satisfactory. We therefore
recommend that the Government bring forward as part of the proposed
legislation an enabling power to establish a fit and proper person
test, which could be activated through secondary legislation,
if required.
60. To ensure
that the improvements it expects happen and are effective, we
recommend that the Government undertake a comprehensive survey
of the sector in three years' time. If the situation has not improved,
we recommend that the Government use the power to introduce a
fit and proper person scheme through secondary legislation. Under
such a scheme it should be a requirement of the site licence to
have a fit and proper person as site manager. Failure to meet
this term would be grounds to revoke a site licence. We consider
that a fit and proper person licensing scheme would work most
effectively if it was coordinated at a national level so that
information about owners could be shared between authorities.
The Government should therefore be able to put in place arrangements
for a body to carry out the function and it should be financed
by a levy included in all licensing fees. The scheme could operate
using similar criteria to those used to determine applications
for consumer credit act licences, so that authorities would be
able to consider the associations of a licence holder or applicant,
in addition to those set out in the Government's 2009 consultation
on park homes. The scheme could also include provisions for local
authorities to take over the management of sites when licences
were revoked and to compulsorily purchase sites, in extreme cases,
when returning management of a site to the owner would not be
possible.
71 Q 141 Back
72
Q 142 Back
73
Ev w187 Back
74
Department for Communities and Local Government, Park Home
Site licensing-Improving the Management of Residential Park Home
Sites: Consultation, May 2009, para 10 Back
75
Department for Communities and Local Government, Park homes
site licensing reform: The way forward and next steps, March
2010, pp 4, 22 Back
76
Q 266 Back
77
Q 274 Back
78
Q 271 Back
79
Ev 109 Back
80
Ev w224 Back
81
Q 274 Back
82
Ev 131 Back
83
Department for Communities and Local Government, Licensing
of Houses in Multiple Occupation in England, 2007, paras 7.1-2
Back
84
Department for Communities and Local Government, Circular
02/03: Compulsory Purchase Orders, 2003, appendix d, para
12 Back
85
Department for Communities and Local Government, A Better
Deal for Mobile Home Owners, April 2012 Back
86
Q 487 Back
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