“We hope now the council will look to accommodate us and our old, sick and children at school rather than taking us to court to put us on the side of the road,” says a member of the Traveller family staying at Ramsgate Port following a High Court quashing of a section 77 eviction notice.
The notice was served on the family at the Port by Thanet council in December 2021 but the Appeal Court has deemed it invalid after it concluded: “no attempt was made to give reasonable, or any, notice before the process of removing SO (the claimant) by the use of draconian powers was implemented.”
Pavee family members have been based at the port since June 2021. Thanet District Council originally attended Magistrates’ Court in May of that year seeking an order for removal of the group from Palm Bay. This was unsuccessful on welfare grounds and the council was told by the court to make available an alternative site. Ramsgate Port was identified as being able to provide facilities.
The magistrates’ court decision was made due to poor health of some members of the group, including a pregnant woman and a child under the care of Great Ormond Street Hospital.
A Section 77 eviction notice was again issued to some of those at the port in September 2021. The Gypsy and Traveller Coalition say this eviction notice was served just days after the death of a two day old baby amongst the group,
Thanet council said it served the notice on some of the families due to a new group moving onto the site without authorisation and displaying ‘antisocial behaviour.”
Eviction notice ‘unlawful’
But on December 1 2021 another section 77 notice to leave the land was served on everyone staying at the port site, described as Unoccupied land, with the notice adding: “You (together with any other persons with you) are DIRECTED forthwith to leave the land and also to remove the vehicle or vehicles and any other property any of you have with you from the land.”
The case for the Traveller claimant was service of the notice was unlawful because Thanet council, as occupier of the land, had permitted the claimant – and family – to enter and stay at the port in their vehicles and no notice had been given of any decision to withdraw consent before serving the section 77. This meant the claimant was not staying at the port without consent and the land is owned by the council so not ‘unoccupied.’
Thanet council argued that it did not need to tell the family consent to stay had been withdrawn and the eviction notice was enough to make them aware.
However, the appeal court did not agree, saying: “The submissions of the Thanet District Council, if accepted, would mean that a resident on land who genuinely and reasonably believed that they were there with the consent of the occupier would become liable to a criminal conviction if they did not leave in haste following the unexpected service of the section 77(1) direction.”
Council documents
The hearing also highlighted that Thanet council’s Equality Impact Assessment which outlined the agreement for a short term negotiated stopping site said it would be for a “ period of approximately 5 months” but this was not shown to the Traveller group until after they were issued with the notice to leave.
Code of Conduct documents, which the group did see, stated: “The use of the tolerated site and welfare to be reviewed every 3 weeks until further notice,” adding: “The council will visit to check on your welfare and circumstances and to offer general advice and assistance. This will give you a chance to tell us of any specific welfare factors you feel should be taken into account before a decision is made about the future of the stopping site.”
That document did not contain reference to a five month stay.
Public law duties
The judgment raised the ‘public law duties’ of a local authority and noted: “A local authority acting reasonably and fairly having used such language would consult before making the decision to withdraw consent, as part of the Code of Conduct documents suggests.
“The failure to do this is not something which is criticised in these proceedings. However, such a local authority would also then inform those affected of what the decision was and allow them a reasonable time to vacate the Land before being made subject to criminal sanctions for failing to do so “as soon as practicable.”
The decision by Lord Justice Underhill, Lord Justice Arnold and Lord Justice Edis was to grant the judicial review of the section 77(1) direction and quash the eviction notice.
It comes after a bid for a Judicial Review hearing by the Pavee families was rejected by the High Court in July but the application was then made for it to be heard at the Court of Appeal.
‘Human rights’
Paul James, from The Gypsy and Traveller Coalition, said: “The council need to take the human rights of the port residents into consideration seriously and not discriminate against them as opposed to other residents in the area.”
‘Important result’
County Councillor Karen Constantine, who was amongst those supporting the family members to bring the legal action, said the judgment was “an important result.”
She said: “This result demonstrates beyond doubt that all councils need to take the needs of residents, especially residents with protected characteristics, much more seriously than Thanet District Council did.
“TDC failed to follow or implement its own Equality Impact Assessment. Close attention is required to ensure this omission isn’t repeated. Not just for the GRT community – but for all residents.
“The eviction order is quashed and TDC will need to restart that process if they choose to evict. However, they will need to take into consideration the pressing health and education needs of the residents. TDC and KCC are still failing to either assess or support port residents.
“For instance they refuse to accept a large group of 43 people as ‘ statutorily’ homeless, despite myself and Father McNally of Margate providing a comprehensive list. Nor will TDC meet the continued health needs by providing sufficient toilets and showers. Similarly KCC do not have a proper process in place to enable youngsters access to education.
“I seriously question how much time and effort is being wasted chasing answers to legitimate questions? And what is the full cost of ignoring potential solutions? Is this how other groups of people who should have additional protection under the Equality Impact Assessment process are treated? Surely it’s more effective to get around the table and talk?”
Cllr Constantine said the ruling was a “wake up call” for Thanet council’s senior management team past and present.
She added: “The council now need to check to ensure that this miscarriage cannot happen again. It is not only a victory for the people who brought the claim but is also important for any resident who requires support from the council, or who is dependent on the council for any services.”
‘Consider next steps’
A Thanet council spokesperson said: “We recognise the decision that the court made, and we continue to work with the families on the site as we consider our next steps.”
Thanet council support for housing needs can be accessed by telephone 01843-577000 by email to [email protected] or on the website at: https://www.thanet.gov.uk/info-pages/homeless-or-at-risk-of-losing-your-home/
Council officers say they have provided the information to households staying at the port as part of welfare checks and are open to dealing with applications.
Education
Kent County Council has disputed Cllr Constantine’s claims, saying: “It is incorrect to suggest that KCC has not done everything in its power to facilitate an education for the children living on the site.
“Several children have been successfully supported in securing school places, which shows that officers have been both pro-active and successful in a number of cases. The remaining children are not outside of education due to a lack of effort or opportunity.
“The School Admissions Code requires councils to help families identify schools with spaces in their area, but applications must be made by parents directly to schools. That information about school spaces and a supply of application forms has been made available to all families on the site, as well as support from Mrs Constantine and Education Engagement Officers who have visited the site.
“However, KCC cannot compel a parent to submit an application to a school and this remains the primary barrier in ensuring the remaining children on the site secure the education to which they are entitled.
“Where a parent is unwilling or unable to secure a suitable education for the child, KCC can use a School Attendance Order to legally compel them to do so. Officers have used available information to undertake checks with NHS and the district council as is usual for children missing education cases. These checks were unsuccessful and it has not been possible to collect the correct details for the children or their whereabouts, despite numerous attempts.”
KCC says the Education Act cannot be used if children cannot be identified but the authority would be happy to support Mrs Constantine or another third party to work with the families who have children currently missing an education.
Sites
A ‘call for sites’ for Thanet’s updated Local Plan received no response in terms of putting forward land for Gypsy and Traveller accommodation.
A need for 7 permanent and 5 transit vehicle pitches in Thanet was identified in a study for Thanet council. Temporary tolerated pitches are when people on unauthorised encampments stay for an agreed amount of time.
Thanet currently does not have an authorised Traveller site, with the nearest being in Canterbury and Dover although these are often over-subscribed.