The next section of the consultation paper covers interim management arrangements. The 2014 Act gives a local authority which has issued a site licence the power to apply to a sheriff to appoint an interim manager for a site. The Scottish Government expects that it will be very rare for an interim manager to be appointed but the consultation paper notes that this measure provides a procedure for putting in place someone to manage a site and keep it in good repair, in a situation where the site owner was unable to run the site. The 2014 Act gives Scottish Ministers the power to set out in regulations matters around the appointment, powers, and duties of an interim manager and the draft regulations specify the powers which a sheriff may give to an interim manager. The draft regulations also reflect a number of other measures relating to an interim manager.
Question 8: Do you agree with the matters that we propose setting out in regulations relating to an interim manager?
Question 8 asked respondents whether they agreed with each of 15 matters relating to an interim manager set out in the draft regulations. Results at this question are summarised in Table 9 below. Full results, by respondent type, are set out in Annex 2 to this report.
Table 9: Question 8 - Summary of responses
|8a||Giving the interim manager the power to take possession of the site?||25||3||28|
|8b||Giving the interim manager the power to carry on the licence holder's business in so far as relating to the management of the site?||26||2||28|
|8c||Giving the interim manager the power to carry out works in connection with the management of the site?||24||4||28|
|8d||Giving the interim manager the power to execute documents on behalf of the site licence holder?||26||2||28|
|8e||Giving the interim manager the power to make any arrangements or compromise on behalf of the licence holder?||24||3||27|
|8f||Giving the interim manager the power to appoint and dismiss agents and staff?||25||1||26|
|8g||Giving the interim manager the power to appoint a solicitor, accountant or other professional to assist the interim manager?||25||2||27|
|8h||Giving the interim manager the power to make and receive payments?||25||2||27|
|8i||Giving the interim manager the power to take out insurance?||26||2||28|
|8j||Giving the interim manager the power to raise and defend legal proceedings?||24||2||26|
|8k||Giving the interim manager the power to refer a dispute to arbitration?||25||1||26|
|8l||A sheriff can only appoint someone as an interim manager if the sheriff is satisfied that the proposed interim manager has the relevant skills and experience?||25||2||27|
|8m||A sheriff can make provisions related to an interim manager's appointment and termination of appointment?||26||0||26|
|8n||A sheriff must determine how an interim manager will be paid?||25||1||26|
|8o||Making it an offence to obstruct the interim manager in the performance of their functions?||24||3||27|
At each of the matters, the majority of respondents who answered the question agreed that the matter should be set out in the regulations covering interim managers. Two individual respondents tended to disagree across a number of the matters. There was one matter with which all respondents agreed - that a sheriff can make provisions related to an interim manager's appointment and termination of appointment. The matter at which the highest number of respondents disagreed (4 out of the 28 respondents who answered this question) concerned giving the interim manager the power to carry out works in connection with the management of the site.
Between 11 and 15 further comments were made on each matter. As at Question 3, many of the further comments were general to all the matters concerned, with a number of respondents referencing an earlier comment under some or all subsequent matters or tending to make the same comment at most or all matters. General comments made by those who had agreed (at Question 8a and at most or all subsequent matters) were:
- The various provisions offer a necessary and/or reasonable approach to allow the site to be managed in the interest of that site, its residents and its neighbours. This includes meeting the various rights and responsibilities set out under legislation.
- In order to carry out their duties effectively, an interim manager needs to have full control of the site. Specifically, an interim manager needs to have control of all aspects which could affect business or licence compliance.
- Residents must be kept fully informed of any changes.
A general comment made by a local government respondent who had disagreed (at Question 8a and at some subsequent matters) was that these are issues for the Sheriff to decide.
In addition to general comments, a small number of comments concerned one of the matters specifically. These are set out in turn below.
8a. Giving the interim manager the power to take possession of the site.
- Right of access and possession are essential. This includes the requirement to provide security for mobile home owners.
- Certain legal issues raised by the new licensing regime need to be clarified, including how any powers to take possession would work for sites with a mixture of residential and holiday static and/or touring pitches.
8b. Giving the interim manager the power to carry on the licence holder's business in so far as relating to the management of the site.
- The interim manager will require access to all records and information to allow them to carry out their duties.
8c. Giving the interim manager the power to carry out works in connection with the management of the site.
- 'Works' may need to be defined more closely, possibly to include being restricted to maintenance of the site or limited to work required to meet site licence conditions.
- There could be significant dangers if the interim manager was not aware of structural ground works issues the site may have.
8d. Giving the interim manager the power to execute documents on behalf of the site licence holder.
- Time can be critical if a resident is in the process of selling their home and an interim manager would need the necessary powers to ensure home sales can be completed in a timely manner.
8e. Giving the interim manager the power to make any arrangements or compromise on behalf of the licence holder.
- All interested parties must be kept informed. If the wrong approach is taken by the interim manager, this could cause unrest on the site.
8f. Giving the interim manager the power to appoint and dismiss agents and staff.
- If staff or agents are problematic to the running of a site, the interim manager must be able to dismiss them. However, if the staff or agent works within other parts of a business dismissal must be limited to activities at the site(s) for which the interim manager has been appointed.
8g. Giving the interim manager the power to appoint a solicitor, accountant or other professional to assist the interim manager.
- It is essential that an interim manager should also be able to appoint people to contribute to, or assist with, the running of the site. However, they should be able to demonstrate the need for any additional support to be provided by these professionals.
- The costs associated with any such appointments should not be borne by residents.
8h. Giving the interim manager the power to make and receive payments.
- For the business of the site to run smoothly, they must be able to receive payments such as pitch fees and charges for utilities.
8i. Giving the interim manager the power to take out insurance.
- Park owners require liability insurance and it follows that an interim manager must also carry such insurance.
- Public liability insurance should be required to ensure the licensing authority does not find itself exposed to civil claims by default.
8j. Giving the interim manager the power to raise and defend legal proceedings.
- There could be occasions when the interim manager would be required to start or defend legal proceedings at the Sheriff Court. This might depend on how long they are expected to be in post.
- Not having these powers would make it very difficult to find someone willing to take on the interim manager role.
- Clarification is sought as to whether the interim manager would be accountable for the proper discharge of their responsibilities to the court which appointed them.
- Such powers would presumably not conflict with action by a licensing authority which again needed to appoint another interim manager for the same site.
8k. Giving the interim manager the power to refer a dispute to arbitration.
- It will always be desirable to facilitate disputes being resolved without resorting to legal measures.
8l. A sheriff can only appoint someone as an interim manager if the sheriff is satisfied that the proposed interim manager has the relevant skills and experience.
- An interim manager must be competent - in terms of skills, knowledge and experience - to undertake all the duties associated with managing the site.
- Guidance would be needed as to the qualifications; skills and experience required and from where or from what background an interim manager might be appointed.
8m. A sheriff can make provisions related to an interim manager's appointment and termination of appointment.
- A sheriff should be able to terminate an appointment if the interim manager is not able to carry out their duties to the necessary standard.
- The arrangements governing both appointment and termination should be set out in guidance and there may be a case for creating a list of approved interim managers.
8n. A sheriff must determine how an interim manager will be paid.
- This approach would protect the interim manager, including from coming under pressure from the site owner.
- The costs associated with putting an interim manager in place should not be borne by residents.
- The arrangements governing the payment of interim managers should be set out in guidance.
8o. Making it an offence to obstruct the interim manager in the performance of their functions.
- It is important that there is security for mobile home owners who need to know that the site will continue to be managed and maintained properly. This will include ensuring that third parties do not seek to interfere with the interim manager carrying out their role.
Question 9: Are there any additional powers an interim manager should have? If so, please set them out below together with the reason you think it appropriate for the interim manager to have this power.
Eleven respondents commented at Question 9. The most frequently made suggestion came from four individual respondents and was that interim managers should be given powers to prevent the site owner from entering the site. Those seeking this provision pointed to a need to protect residents from being bullied or intimidated by site owners who have had their licence revoked.
The other main suggestion (raised by two local government respondents) concerned powers to allow the interim manager to apply to transfer a licence. There was a concern that in the absence of this power, the only means of transferring the licence would be for a full application from a prospective licence holder. The proposed alternative was that the interim manager should have the power to apply to a court for removal of the existing licence holder, related associates or family where antisocial behaviour or criminal activity is taking place or being threatened.
Other comments focused on requiring the interim manager to consult with residents and/or any qualifying Residents' Association and the importance of avoiding the potential for lengthy civil legal disputes by being clear on key legal issues and ensuring that there are no loopholes to be exploited. The specific legal issues highlighted included those already raised at Question 8a (above). Again, there were calls for guidance to cover these key areas.
Finally, a private sector organisation or trade body reiterated their view that the appointment of an interim manager should be seen as a last resort and that licensing authorities should work with park operators in a fair, consistent and transparent way.