On 16 December the Department of Communities and Local Government published its response to its supplementary consultation relating to changes to the Mobile Homes Act 1983. The supplemental consultation relates to the proposal to shift the fact-finding role in the making of possession orders form the Courts to the Residential Property Tribunal.
This is an interesting idea as it has previously been put forward by the Law Commission in their report Housing: Proportionate Dispute Resolution who suggested that some or all residential tenancy possession matters be moved from the Courts into a tribunal system. This was heavily opposed by District Judges themselves who seemed determined to guard this power. The Government appears to be trying to cover both bases in this consultation by leaving the power to make possession orders with the Courts but reducing their workload by moving the actual consideration of facts to a tribunal. Leaving aside the patent silliness of separating these functions and the concomitant duplication of effort this causes this might also be an indication of an attempt to adopt the Law Commissions proposals by the backdoor by shifting functions progressively into the tribunal system.
The consultation has been a bit of a blow for the transfer policy. 18 groups responded and there was an overwhelming rejection of the idea of separating the jurisdictions, largely for reasons, which have been outlined above. The Government has accepted this and will not transfer any part of the termination process at this time.
The consultation also asked about transfer of repairing cases to the RPT. Although the responses were again substantially against such a decision the Government has rejected the consultees views this and will now look to transfer repairing cases to the RPT. This is a surprising decision to say the least. The Government has justified it by making a clear split between the two roles. The RPT will consider on the facts whether the lack of repair of a mobile home is detrimental to the site to such a degree that termination of the agreement is appropriate. If it considers that this is the case then an application will be possible to the Court who will consider whether it is reasonable to terminate the agreement. No application will be possible to the Courts without an RPT decision. The Government seems closed to the fact that legal aid is unavailable for tribunal cases, to the probable increase in costs for all sides, to the potential for satellite litigation, and to the fact that the RPT is not fully integrated into the tribunal arrangements created by the Tribunals, Courts and Enforcement Act 2007 and therefore has an appeals system that does not function particularly effectively.
It is proposed that these changes will go forward on 6 April 2010, presumably by way of a Statutory Instrument making changes to the Mobile Homes Act. It is disappointing to see that the Government will be making changes that have not received much support in a manner which will allow for the minimum of Parliamentary debate.