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Section 5: Pitch Targets and Non-Harassment Policies - The Past and the Future

The Background

5.1 A fundamental tenet of the system of providing accommodation for Travellers has been the linking of pitch targets, for individual local authorities, with the provision of a grant scheme to assist local authorities in achieving those set targets. Running in tandem with this arrangement has been the policy of toleration and non-harassment of Travelling People. Since its introduction in 1977, this policy has been the subject of a number of specific recommendations in past Committee reports (Appendix C - Recommendations 71, 74-75). The policy was adopted to encourage local authorities to provide permanent sites for Travellers as a long term solution to illegal encampments. It was recognised that where there is a shortfall in proper provision for Travellers, it is a waste of police, court and local authority resources to move Travellers from one unauthorised site to another. The toleration policy does not apply to large random encampments of more than twelve caravans. It is understood that the toleration policy is reflected in prosecution policy and that it applies only to the physical occupation of land and does not give Travellers any other protection against contravention of statute or common law. In areas where pitch targets have been met, at present, authorities are no longer required to tolerate unauthorised encampments of Travellers.

5.2 From 1985 this policy was linked to the targets set for the provision of pitches for Travellers in local authority areas (Appendix C - Recommendations 72-73). When the Committee's term of office came to an end in December 1999, the then pitch targets and the extent to which they had been achieved, taking account of provision on privately owned sites, were as shown in Table 1 (below). The Committee recognises that with the ending of the grant scheme both the pitch targets and the toleration policy are no longer sustainable.

5.3 The setting of pitch targets has changed little over the life of successive Committees. Due to the very nature of Travelling People and their lifestyle, any targets set were likely to be a compromise based on average demand but not purporting to meet total peak demand at particular times (e.g. fairs, etc.). The policy has been much criticised, both by local authorities who generally felt the targets to be too high whilst the Traveller organisations and the voluntary sector felt the targets were too low. Research by both sides has been used to prove 'their case', much of it selective in nature, and to prove a particular point. However, local authority pitch targets have generally seemed to be fair and have led to the successful development of over six hundred local authority pitches - a success at least for the Traveller who enjoys such provision with its increased amenities.

5.4 The toleration policy or policy of non-harassment has been much misunderstood. Initially it was fought for by Traveller representatives to prevent the odious situation where Travellers were being constantly moved on and harassed and in the face of diminishing private sector provision. In later years it has been seen by Travellers and their representatives as being discriminatory to the point of institutional discrimination. They also emphasise that the principle of a 'toleration' policy undermines Travellers' rights and does not answer the shortage or inappropriate number of pitches. It is also seen as a racist concept as it 'clearly and publicly sets a limit to which Travellers should be 'tolerated', rather than being part of a diverse general population, and emphasises a prejudice against the community which, already suffers discrimination'.

Table 1 - Local Authorities Pitch Targets and Provision (as at 31 December 1998)

* - The grant scheme has been wound up with the latest date for applications being December 1998.

5.5 If the policy is removed in its entirety, there is absolutely no doubt that the Travellers' plight would become far worse. Accordingly, it is necessary to find some mechanism to replace it which operates in local authority areas where Travellers' needs are not being adequately catered for.

A Traveller View on the Policy

5.6 A Traveller perspective on this policy is given below. Travellers themselves have strong views on the 'toleration and non-harassment' policy. In part perhaps they misconstrued the way in which the term 'toleration' was intended to be used, but also seeing the 'non-harassment' as rarely being applied in practice. The following are just a few Traveller comments on this issue:

'The 'Toleration Policy' is unacceptable in modern society, it is, indirect racism';

'It is patronising and racist to presume that Travellers want to be 'tolerated'';

'The lack of official sites, the non-acceptance of Travellers on some private and tourist sites and the frequently patchy implementation of 'non-harassment' makes staying anywhere other than on a local authority site virtually impossible,

rendering it harder and harder for Travellers to be self supporting and independent';

'What Travellers would like is a bit of co-operation and would much prefer that a Co-operation Policy was adopted';

'What is the toleration policy? I don't understand, we (Travellers) are not tolerated, unless we are on a Local Authority site. If we stay at the side of the road anywhere in Scotland we are immediately moved on. There is one place in the far north west where we have stayed since him and I got married fifteen years ago. A fortnight ago we went up to do the whelks, we could not get on to this spot - it had been blocked off with large boulders. We went about a mile along the road and pulled in for the night. We had just pulled in and got the caravan jacks down when the Police pulled in to tell us we would have to move on, we were not allowed to stay there. The Police recognised us from staying so often in that area and actually apologised for the fact that they would have to move us on but there had been a complaint. Their actual words were - your kind of people made a terrible mess here last year and now Travellers are not allowed to stay here. Why is it that when something goes wrong Travellers are all lumped together as if every one of us had made the mess? Why are we not taken as individuals?'

'So once again I ask you what is this toleration policy - if there is not a campsite locally, how come we are not tolerated, it is usually a waste bit of ground that we stop on, we try not to get in anyone's way and yet we are constantly asked to move on. We are certainly not tolerated'.

5.7 The Committee is firmly of the view that, overall, the policy of non-harassment and toleration has been of benefit to Travellers who undoubtedly, would have been subject to far more disruption of lifestyle had the policy not been in place.

An Alternative Approach : Guidelines on Unauthorised Encampments

5.8 Within the Committee's term of office, guidance on unauthorised encampments has been provided in England and Wales (Managing Unauthorised Camping _ A Good Practice Guide, DETR/Home Office 1998). The issues involved are very similar to those facing Scottish local authorities and the Committee feels that they can be adapted successfully for use in Scotland. Adoption of such an approach would have the added virtue of providing a consistent response to unauthorised stopping by Travellers throughout the United Kingdom.

Local Knowledge

5.9 Local authorities should get to know the patterns of Traveller movement in and through their areas, together with any particular areas of difficulty, and develop policies in consultation with all the appropriate service providers including the local police. This might involve:

• regular monitoring of encampments, including the sites affected, size and nature of Traveller groups involved.
• getting to know Travelling groups and families, their needs and intentions. Building up trust between local authority officers and Travellers may avoid much more expensive formal legal action. It also provides a starting point for enquiries about Travellers' needs.

5.10 Local authorities should have an overall strategy towards Traveller issues, including needs assessment, site and service provision as well as policies on management of unauthorised sites which should be developed with the local police.

5.11 Liaison on developing policy and on day-to-day working is crucial for a successful policy on Traveller matters.

• good day-to-day working relationships are essential between departments and agencies, as well as structures for strategic planning. This is particularly important in dealing with unauthorised encampments, where any duties owed to Travellers will need to be ascertained and complied with;

• individually named contact officer(s) should be identified in each relevant department or agency on whom the lead office can call as necessary.

5.12 All local authorities should identify 'acceptable' temporary stopping places to which Travellers can be directed if necessary.

5.13 Local authorities should build planning aspects into their overall Traveller strategy, for example: applications by Travellers to develop a small site with one or two ancillary buildings should be treated as 'agricultural' as opposed to 'residential' development, in the recognition that the type of accommodation required and the types of vehicles involved are more akin to that form of development.

Protection of Vulnerable Land

5.14 Undertaking works to prevent access to land by Travellers so as to avoid unauthorised entry and encampment has an important role to play, especially in urban areas. It may be urged on local authorities by the courts, for example where eviction orders are being sought repeatedly for the same site, or by the police, where repeated encampment brings the fear of public order problems. Here the following points should be considered:

• protection of land should be carried out on a planned basis. It should only cover especially vulnerable sites where encampment would cause - or has caused - unacceptable problems. Some sites should always be left open for emergency use;
• the practicalities should be carefully weighed. Not all sites can successfully be protected, and expenditure in unsuccessful works is wasted.

Written Policies

5.15 Local authorities and the police should have a written statement of their policies towards unauthorised encampment. This should be made available to Travellers.

5.16 A written policy is essential to:

• ensure that authorities and the police take a consistent and balanced approach to unauthorised encampments;

• help authorities to demonstrate to others (including Travellers, the courts and the settled community) that they have taken a consistent and balanced approach, and have properly reached decisions in line with policy;
• provide a basis for explaining policy to Travellers, complainants and members of the public;
• provide a basis for involving other relevant agencies with arrangements in place for liaison with statutory agencies, both....
• to ensure that those agencies carry out any duties they may have towards the Travellers;

and....

• to ensure that local authorities' statutory duties regarding education, the welfare of children, etc. are recognised;
• safeguard, in the local authority context, the position of officers in implementing agreed policy, and allow delegation of decision-making to officers when acting in line with the policy;
• provide the basis for detailed procedure guides which can help streamline internal procedures, ensure consistency and enable non-specialist officers to undertake duties if necessary;
• provide an impetus for local authorities and the police to agree joint policies for dealing with unauthorised camping.

5.17 The written statement provides the opportunity for setting out the ways in which the policies on unauthorised encampment link with other local authority policies affecting Travellers, equal opportunities and service provision.

5.18 Policy statements might appropriately include the following:

• a statement on which Travelling People the policy relates to;
• identification of the action to be taken in respect of land in different ownership;
• responsibilities of different authorities and agencies. This might include determining the split of responsibility between the local authority and the police;
• alternative courses of action which the authority might take. This could include negotiation with Travellers to agree a departure date, or instigation of eviction procedures;
• characteristics of encampment sites which would normally trigger eviction procedures (i.e. size of encampment, location, nuisance, traffic hazard, damage etc.);

• standards of behaviour expected from Travellers on unauthorised sites if they are to be present for any period (for example, control of animals, rubbish disposal, avoiding noise, nuisance or damage, criminal activity);
• circumstances in which an authority might provide rubbish storage and collection services, water supply or toilets.

Consistency of Approach

5.19 Standards of behaviour expected of Travellers should be no different from those expected of the settled community.

5.20 Local authorities should ensure that their response to nuisance on unauthorised encampments is consistent with their response to nuisance elsewhere.

5.21 The Committee draws attention to obligations a local authority might have under legislation and has advised that they should liaise with other organisations with possible responsibilities towards the families.

5.22 Local authorities seeking possession orders, on land, using civil powers must similarly be aware of any duties owed to Travellers under their wider responsibilities, and must take account of relevant considerations of common humanity.

• local authorities must consider welfare issues when deciding whether to proceed with eviction, whatever the powers being used;
• this is because authorities have in-escapable responsibilities to Travellers, as well as other residents. Whatever action a local authority may decide to take in respect of an unauthorised encampment, it must comply with whatever duty they have towards the Travellers;
• authorities must be able to satisfy a court that proper enquiries have been carried out to enable them to take consideration of common humanity into account, if they are to succeed in getting eviction orders and successfully resist legal challenge.

5.23 Where problems being caused by an unauthorised encampment are sufficiently serious, it may be necessary for the police to exercise their powers without giving local authorities an opportunity to undertake welfare assessments.

Welfare Enquiries

5.24 Local authorities must accept that they have to make enquiries of a welfare nature. The following pointers to good practice should be followed:

• unauthorised encampments should be visited as soon as possible after they are identified to collect basic information on the number of vehicles and families involved; past and intended future movement; anticipated length of stay; reasons for stay; and any particular health, educational or other welfare needs;
• this basic information is the starting point for liaison with other relevant departments and agencies. Where school age children are present, the Education Service should be notified. Similarly social services or health authorities should be notified where there are social, health or welfare needs to be further assessed;
• local authorities will need to consider the individual circumstances of each authorised encampment. It may be appropriate to make wider or further enquiries than those suggested above.

Making Decisions

5.25 Local authority decisions about what, if any, action to take in connection with an unauthorised encampment has to be taken in the light of information gathered. A decision properly taken must balance a number of factors including:

• evidence of the nuisance and/or damage being caused by the encampment, threat to hygiene, which may be corroborated by complaints from the public (the validity of complaints received from members of the public about such matters should always be checked);

with

• evidence of the Travellers' needs for somewhere to stay as well as any particular social, education, health or welfare needs revealed by enquiries; availability of alternative sites; scope to take measures to contain or reduce any nuisance.

5.26 Decisions must be 'reasonable', in the legal sense of not being perverse or irrational, in the light of the evidence available. This is clearly an area for local judgement in the light of the particular and unique circumstances around each encampment:

• decisions must be properly taken. To successfully withstand any subsequent legal challenge, authorities must also be able to show that they have been properly taken. All relevant facts, including evidence of damage and nuisance, should be charted in writing; a photographic or video record might be taken in support;
• responsibility for taking decisions must be clearly identified within the authority's policies and procedures, whether delegated to officers or retained by elected members.

Recovery of Heritable Property

5.27 Local authorities should, where appropriate, follow a route which requires a court order.

Conclusion

5.28 There is an underlying conflict within what is generally perceived as the 'problem' of unauthorised use of land by Travellers. On the one hand, there are Travellers who want or need to stay in an area for a period of time but have nowhere they may legally stay. On the other is a settled community which basically does not want to have Travellers stopping anywhere near them. Local authorities are caught between these two. While they may try to find a balance between the needs and expectations of each they may end up satisfying neither and possibly antagonising both. Clarification of overall policy aims and shorter term objectives is essential if practical arrangements for dealing with unauthorised encampments are to be developed.

5.29 The Committee recognises that with the ending of the grant scheme pitch targets have ceased to have relevance. At the same time without the targets the toleration policy has become untenable. It therefore feels that the guidelines put forward in this section can provide a reasonable alternative approach and recommends accordingly.

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