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Summary of Fit and Proper Person Test Guidance for Local Authorities

New regulations coming into force from 1st October 2021 will prohibit the operation of a residential park homes site unless the site owner or manager of the site is assessed by the Local Authority as being fit and proper to manage the site.

Site owners have three months from 1st July 2021 to apply to the Local Authority in which the site is located for themselves or their appointed manager to be assessed as fit and proper.

The Government has now issued non-statutory guidance to Local Authorities and Site Owners which is summarised below.

Guidance to Local Authorities on the Fit and Proper Person Test:

Summary

  • The Mobile Homes (Requirement for Manager of Site to be Fit and Proper Person) (England) Regulations 2020 (hereafter ‘the Regulations’) prohibit the use of land as a residential mobile home site unless the Local Authority is satisfied that the owner or manager of the site is a fit and proper person to manage the site. The purpose of the fit and proper person test is to improve the standards of park (mobile) home site management.
  • The Regulations allow Local Authorities until 1 July 2021 to prepare to receive applications from site owners. From 1 July 2021 and by 1 October 2021 all site owners must submit an application for a Manager to be assessed as fit and proper persons.
  • The Regulations apply to both “residential parks”, which are used exclusively residentially, and “mixed use parks”, which are used for both residential and holiday purposes.
  • ‘Holiday-only’ sites and those operated on a non-commercial basis are exempt.
  • From 1st October the Local Authority will be required to establish and keep up to date a register of fit and proper persons which the public can inspect at their offices during office hours. They will also be required to publish the register online.

Overview of the Fit and Proper person assessment

The site owner must apply to the Local Authority for the Relevant Person (either themselves or the site manager, both referred to here as ‘Manager’), to be included on a register of fit and proper persons. A site owner may only apply if they hold or have applied for a site licence for that site.

  • The Local Authority will consider the application then make a decision whether to place the Manager on the register with or without conditions, or not to place them on the register. A site owner will have a right of appeal against a decision or condition.
  • Where a Manager fails an assessment and the site owner is unable to identify and appoint a suitable alternative manager who must also undergo the fit and proper assessment, the Local Authority could appoint a person to manage the site, with the consent of the site owner.
  • It is an offence for a site owner to
    • cause or permit land to be operated as a relevant protected site unless they or the person appointed to manage the site is a fit and proper person to manage the site;
    • provide false or misleading information or fail to provide information in an application; or
    • fail to comply with a requirement set as a condition of the Local Authority’s decision to include a person on the register.
  • If convicted for any of these offences, the site owner will face a potentially unlimited fine.

Residents Q & A

Who must make the application?

The site owner on their own behalf or on behalf of the person they have appointed to manage the site.

What information must the site owner provide?

The site owner must provide the following information in their application:

Basic Information:

  • The name and business contact details of the site owner;
  • details of their role (if any) in relation to the management of the site;
  • The name and address of the site;
  • Evidence of the site owner’s legal estate or equitable interest in the site;
  • Confirmation that the site owner is the occupier within the meaning of section 1 of the Caravan Sites and Control of Development Act 1960;
  • The name and business contact details of any other person that has a legal estate or equitable interest in the site.
  • The name and address of each other relevant protected site(s);
    •  for which the site owner holds a licence issued under section 3 of the Caravan Sites and Control of Development Act 1960;
    • in which the site owner has a legal estate or equitable interest; or
    • that the site owner manages.

Additional Information:

For each person who will be managing the site, the site owner must provide:

  • A criminal records certificate no more than six months old

They must also provide details of the following:

  • Whether the manager can properly manage the site and comply with site licence conditions
  • The experience of the person, management structure and financing of the site
  • Whether the manager has committed any offence involving fraud or other dishonesty, violence, arson or drugs or listed in Schedule 3 to the Sexual Offences Act 2003
  • Whether the manager has breached any laws relating to housing, landlord and tenant, public health, environmental health or planning law
  • Whether they have breached any provisions of the Equality Act 2010 or committed an offence of harassment.
  • Whether they have become insolvent or disqualified as a company director in the past 10 years
  • Whether they have the right to work in the UK

In some cases, the site owner will also be required to provide information about other persons who are involved or proposed to be involved in the management of the site. Those other person(s) are referred to in the guidance as “responsible persons” or “Associates”.

What does the test cover?

‘Fit and proper’ is not defined in law, however the Local Authority must have regard to the following factors when carrying out the assessment:

  1. Whether the relevant person can properly manage the site and comply with site licence conditions
  2. The experience of the person, management structure and financing of the site
  3. Whether the manager or owner has committed any criminal offences of fraud, dishonesty, arson, violence, drugs or certain sexual offences.
  4. Whether the relevant person has breached any laws relating to housing, landlord and tenant, public health, environmental health or planning law
  5. Whether they have breached any provisions of the Equality Act 2010 or committed an offence of harassment.
  6. Whether they have become insolvent or disqualified as a company director in the past 10 years
  7. Whether they have the right to work in the UK

What other matters can the Local Authority consider?

The Local Authority can also take account of the conduct of any associated persons as well as any other matter they consider relevant to the application.

Conduct of “Associates”

The Local Authority may have regard to the conduct of any person associated or formerly associated with the manager (whether on a personal, work or other basis) if it appears to the authority that that person’s conduct is relevant.

There is no obligation on the site owner to provide this additional information but doing so may help the site owner address any concerns about such associates.

Local Authorities should not routinely require information of all current or past associates of the Manager.

It is for each Local Authority to decide based on the facts of the case who they consider to be an associate and why they consider the conduct to be relevant to the application. A relevant associate could be considered as one who may have played a part, directly or indirectly, in a decision or action which has had an impact on residents’ rights or the quiet enjoyment of their homes.

Any other relevant matters

 A Local Authority may also have regard to any evidence as to any other relevant matters.

Local Authorities can decide what matters they think are relevant to the assessment of a particular application. These could, for example, be in relation to current or previous issues or events that occurred in relation to the park or any other park owned or managed by the Manager in another Local Authority area. Those matters could also be in relation to the Manager’s other business dealings outside the park homes sector, which have implications for the financial and management arrangements of the site in question.

In all cases, a Local Authority must have evidence to support any matters it considers relevant, as its final decision could be challenged at the First-tier Tribunal where the burden of proof would lie on the Local Authority. The evidence could include tribunal and court decisions, documents or records from Companies House, public bodies or financial institutions. Allegations which have not been investigated or documented should not be used as evidence to support an authority’s decision.

Decisions, Notices and Appeals:

After considering an application, a Local Authority will be required to make one of three possible decisions.

  • To include the Manager on the register unconditionally: If assessed as fit and proper the manager must be included on the register for a period not exceeding 5 years.

The authority must issue a final decision notice to the site owner to inform them of its decision.

  • To include the Manager on the register subject to certain condition(s)

The Local Authority may also grant an application subject to condition(s) which may include a condition relating to the payment of an annual fee.

  • Not to include the Manager on the register

If the Local Authority determines that the manager does not meet the requirements and is unable to grant the application (with or without conditions), a Local Authority must refuse to grant the application.

If a resident thinks a manager is not fit and proper, will the Local Authority take this into account?

The Local Authority may consider other evidence in their assessment, including evidence from residents. However, this is a power not a duty. See above for what may be relevant.

What if a manager fails the test?

If the manager fails the test the site owner will be given the opportunity to identify and appoint a suitable alternative manager. If they are unable to do this the Local Authority will consider whether it is possible to appoint a person to manage the site, with the site licence holder’s consent.

Where an application is rejected, the name and address of the site will be included on the register but not the person’s name or business contact details. Like other registers, Local Authorities will be required to make the register available to the public and online.

If the site owner is not happy with the outcome of the test they can appeal to the First-tier Tribunal (Property Chamber) against a decision to:

  • to include the Manager on the register for a period less than 5 years
  • any condition attached to inclusion on the register
  • any rejection of an application for inclusion on the register

What offences can be committed?

The Regulations create three offences. These are;

  • Operating a relevant protected site without a fit and proper person in place – The site owner will have certain defences Section 7.
  • Withholding information or including false or misleading information in a registration application – Where this has happened, the site owner will not have any defences
  • Failing to comply with a condition – The site owner will have certain defences in proceedings against them. These are set out in Section 7.

What remedies are available if a manager is not fit and proper?

Local Authorities are responsible for enforcing the Regulations. A site owner found guilty of any of the above offences will be liable on summary conviction to a level 5 (unlimited) fine.

Operating a site in contravention of the regulations is a criminal offence, for which a person would be liable on summary conviction to an unlimited fine. It is also an offence for an occupier to withhold information from or include false or misleading information in a registration application.

A Local Authority can apply to the FTT for a site licence to be revoked where there has been a contravention of the regulations by the licence holder. A magistrates court that has convicted a Manager of an offence under these regulations can also revoke a site licence where the person has been convicted of two or more previous breaches for the same site.

What if there is a delay in a Local Authority assessing the application?

A site owner who has made application in accordance with the regulations will be able to continue to operate the site until the application has been determined by the Local Authority.

Will the register be available for public inspection?

Anyone can inspect the register in person during office hours and online to see if a site owner/manager is fit and proper.

Application Fees and Guidance on Fees Policies

Can the Local Authority charge a fee for applications?

Yes. The government has published non-statutory guidance to local authorities on setting a fee policy. The regulations give Local Authorities the power to charge application and annual fees to be included on the register.

Can the fee be passed on to residents through the pitch fee?

Yes. If the Local Authority charges the site owner a fee this could be passed onto residents through the pitch fee.

Where can I find more information on fees?

The Local Authority are required to publish a fees policy before charging a fee for the application or inclusion on the register of fit and proper persons.

Guidance to Local Authorities on fees that may be charged is provided here.

 

More information:

LEASE is governed by a board, appointed as individuals by the Secretary of State for the Ministry for Levelling Up, Housing & Communities.

WARNING ADVICE TO RESIDENTS

You DO NOT NEED to sign a new pitch agreement if your site owner changes. Your existing terms and conditions will stay the same if the site is sold.

If you are asked to sign a new agreement get advice from LEASE or a solicitor before doing so.