Liveaboard boat owners

Waiting for an internal review by British Waterways Board of their handling of this request.

Dear bw.

1. How many boat owners on the inland waterways managed by british waterways use their vessels as their only place of residency?

2. How many pleasure boat owners with home moorings use vessels as their only place of residency?

3. How many pleasure boat owners, with no home mooring, use vessels as their only place of residency.

4. In reference to points 1-3, please provide details of the actual or approximate annual charges made to these boaters ie. licence/mooring etc.

5. Please state where, in any of the bw or Transport Acts, the law precludes using a boat as your only place of residency. Do not include terms and conditions that do not have the force of law.

Kind regards,

Paul Davies

Information Request,

Dear Mr Davies,

Thank you for your e-mail.

We will review the information that we hold relating to your request and a response will be sent as soon as possible but in any case within 20 working days of the receipt of your request today.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
Find out more about the exciting new waterways charity for England and Wales here http://www.britishwaterways.co.uk/charity
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

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Dear Information Request,

please respond to my FoI request as required by law

Yours sincerely,

Paul Davies

Information Request,

2 Attachments

Dear Mr Davies,

I write further to your request for information of 27th August and my acknowledgement of 30th August.

In response to your points 1, 2 and 3 I confirm that British Waterways does not hold the information that you have requested. Boat owners are not required to inform British Waterways whether they live on their boats and so this information does not exist.

We are unable to respond to point 4 because we do not hold the information requested in points 1, 2 and 3. However, I have attached a copy of our Licence fees for 2011/12 for your information along with British Waterways' directly managed mooring prices for England and Wales 2011/12. This information is already publicly available.

With regard to point 5, we are not responding to this as it is not a request for ‘information’ for the purpose of the Freedom of Information Act 2000.

If we haven’t reasonably met your expectations in relation to a request for information or you believe we may not have acted in accordance with the above legislation you should write in the first instance to Kelly Radley Head of Customer Relations, 64 Clarendon Road, Watford, Herts WD17 1DA outlining your concerns and asking for a review to be undertaken. Your correspondence will be acknowledged and a review of your case will be undertaken by one of British Waterways’ directors.

Should you remain unsatisfied by the response you receive you are able to contact the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF www.ico.gov.uk/Global/contact_us.aspx.

Yours Sincerely,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
Find out more about the exciting new waterways charity for England and Wales here http://www.britishwaterways.co.uk/charity
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

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Dear British Waterways Board,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of British Waterways Board's handling of my FOI request 'Liveaboard boat owners'.

I request an internal review and a proper response.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/li...

Yours faithfully,

Paul Davies

edward surridge left an annotation ()

Dear Mr Davis,

After having asked I learned that the number of FOI requests a person can make is not limited but if the enquiries are concidered and proven 'vexacious' I in law then the organiosation can inform of this being the reason why no information on the subjec is given.

Edward Surridge

Information Request,

Dear Mr Davies,

Thank you for your e-mail yesterday. I understand that you would now like British Waterways to conduct an Internal Review of our response to your request for information.

In order to undertake a full and thorough review into these matters it would be helpful to have some further information from you. For example, which elements of our response are you not happy with and why do you feel that we have not answered your request in accordance with the Freedom of Information Act.

I will make the necessary arrangements for your review now and you will hear from us shortly.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
Find out more about the exciting new waterways charity for England and Wales here http://www.britishwaterways.co.uk/charity
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

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Dear Information Request,

It would be helpful if bw answered my question in full

Yours sincerely,

Paul Davies

Paul Davies left an annotation ()

Open Letter to Liberty.

Dear Liberty,

I have recently become aware of a potential client group of over 3,500 liveaboard boaters on the Inland Waterways who are currently under-represented by Liberty and vulnerable to increased enforcement by British Waterways (and the Environment Agency). Enforcement threatens boaters with social displacement, eviction from place, denial of access to education, destruction of home and homelessness, unemployment and denies boaters access to social security and housing benefits.

Find below for your use suggested draft fact sheets for boaters containing basic information, support, and possible resolution to enforcement notices issued by British Waterways, along with a Social Policy campaign detailing the complex areas of law that underlie the licencing regimes of BW and the EA. I trust you find this information of use.

BW legislation is vague, defence uncertain and over 100 court cases are now pending. The needs of liveaboard boaters are therefore immediate and I cannot stress how acute the need is for Liberty to take positive action on behalf of this minority group. may I also draw your careful attention to fact Sheet 4 below.

Kind regards,

Paul Davies
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Liberty Fact Sheet 1: Boat Licence / Registration

If you own a boat or if you use your boat as your only place of residence, you need permission to keep the vessel on the Inland Waterways. Permission is sometimes referred to as the relevant consent.

The main Public Authorities managing the Inland Waterways in Britain are called Navigation Authorities and include the Environment Agency and British Waterways. Permission to navigate in the form of a relevant consent is usually a pre-requisite of a right to moor in a marina. Navigation Authorities also issue terms and conditions that compliment legislation, and sometimes guidance or advice that does not have the force of law.

Non-possession of the relevant consent may lead to the Navigation Authority serving enforcement notices upon the boater under the relevant legislation. Notices can be in the form of a written warning, further written warnings or court proceedings.

Any notice served upon a boater should clearly state the grievance, suggest ways to remedy the situation and finally, and as a last resort, seek compliance through litigation. Failure to respond to a notice or failure to comply with a court order may or may not result in eviction from place and loss of property or home.

Environment Agency

All vessels navigating waterways managed by the EA must be registered under the Environment Agency Inland Waterways Order 2010.

British Waterways

All vessels navigating waterways managed by BW must have a houseboat certificate issued under the British Waterways Act of 1971 or a pleasure boat licence issued under the 1976 General Canal Bye Laws.

Insurance and Safety.

All boats present on the waterways managed by the EA or BW must be insured and possess a Boat Safety Certificate.

It is your legal responsibility to secure the relevant consent with the Navigation Authority.
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Liberty Fact Sheet 2: Boating, Liveaboard Boaters, Housing Benefit, Council Tax Benefit.

If you are living on your boat and unemployed or receive a low income, you may be able to successfully claim Housing Benefit and Council Tax Benefit to cover your boat licence or boat registration.

If you have a permanent or temporary mooring and are required to pay a mooring fee, you may also be able to claim Housing and Council Tax benefit to cover your mooring fee.

Some Local Authorities do not levy charges for Council Tax where the dwelling is a movable structure, or where the land owner is liable. However, the landowner may attempt to ‘pass on the costs’ of Council Tax to their tenants, and Housing Benefit may or may not meet this cost where liability is not with the tenant. If you are unsure whether you qualify for benefits as a liveaboard boater, you should contact the housing department at your Local Council Authority. Alternatively you may seek further assistance from Liberty.

Housing and Council Tax benefits are determined by your Public Authority using the following criteria.

1. Location. If your boat is located and present within a Public Authority area for a majority of the year.
2. Conditions. If your boat requires a boat licence or registration. This is usually the case, although exceptions are known eg. where a boat navigates or is moored on a waterway that is not managed or owned by any Public Authority. Most rivers in Britain are not managed by any public authority.
3. Pre-conditions. Benefit payments may also include payments that are lawfully required as a pre-condition of a licence, registration or mooring. Pre-conditions include annual insurance and Boat Safety Certificate.

ref.
File number: CH 844 2002 Decision of the Social Security Commissioner. Section 10.a-g
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Liberty Fact Sheet 3: Enforcement Procedures

If you receive a notice requesting your compliance with guidelines or law do not ignore this. Your security and home may be at risk. You may consider seeking representation.

Most importantly, contact the Navigation Authority (for example, Environment Agency or British Waterways) and seek resolution. Clarify their advice, and make reasonable offers to remedy any default. Request their response in a written format.

Representation is available from a variety of sources: Liberty, Shelter, Family Friends and Travellers, Citizens Advice, Crisis and the National Association of Boat Owners. The National Bargee Travellers Association may also be able to assist you in negotiation or act on your behalf. Communication with a view to resolution is the favourable option.

Court Proceedings.

Failure to respond to a notice served upon you may or may not result in the navigation authority initiating legal proceedings through their solicitor. If this happens you must immediately seek advice or legal representation. You may qualify for full legal aid or contribution based funding from the Legal Services Commission who will help you find a lawyer. You can check your eligibility for legal aid online at http://legalaidcalculator.justice.gov.uk....

If you are unable to afford a lawyer and do not qualify for LSC funding, pro bono help may be available. Alternatively, an advocate may act on your behalf. Liberty will be able to offer advice on this.

NBTA, will soon produce a Boaters Handbook and this will detail, more fully, your legal rights and responsibilities.

Waterways legislation is case specific and the following legal firms are strongly recommended as experts in the complex legislation referring to the inland waterways:

1. Geraldine Winkler, Housing Solicitor with Stone King Solicitors, Queens Square, Bath
2. Chris Johnson, Gypsy-Traveller Solicitor with Community Law Partnerships, Birmingham
3. Martin Westgate QC, Doughty Street Chambers, London
4. Stephen Cottle, Garden Court Chambers, London
5. Jan Luber QC, Garden Court Chambers
6. Val Easty, Garden Court Chambers, London
7. Michelle Harris, 1 Pump Court Chambers, London
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Liberty Fact Sheet 4: Law and Social Policy Campaign

Environment Agency

All vessels on waterways managed by the Environment Agency must be registered under section 5 of the Environment Agency (Inland Waterways) Order 2010.

This legislation is problematic as it demands payment for the use of water where water cannot be owned. Common Law Riparian Water Rights gives ownership of the river bank and bed to the land owner through which the river flows.

I wish to suggest that registration for a vessel on EA managed waterways is therefore a permit for the use of EA services and facilities on that waterway: floating pontoons, locks, water taps, toilet disposal, recycling and costs associated with general maintenance.

The EA’s regime for consent to use waterways is, otherwise, uncomplicated.

Potential problems.

Concerns must be raised where no bankside moorings are provided for vessel use by EA, and where enforcement socially displaces liveaboard boaters with no home mooring. Eviction from place potentially denies access to education, secure employment and the safety net of social benefits where security of work, and reliance upon benefits are dependant upon a boater’s physical presence in one area.

British Waterways

All vessels on waterways managed by British Waterways must have a Houseboat certificate issued under section 13 of the British Waterways Act 1971 or a Pleasure boat licence issued under section 3 of the 1976 General Canal Bye Laws. Boats licenced under section 43 of the Transport Act are licences unlawfully demanded. Additional terms and conditions are applied under section 17.3.c.ii and schedules 1 and 2 of the 1995 British Waterways Act.

BW also demand compliance through Guidelines and, privately, state that these Guidelines are enforceable under section 43 of the 1962 Transport Act. It is suggested that such advice (currently under review) does not have the force of law.

Use of waterways managed by BW is also regulated by section 43 of the 1962 Transport Act and this Act is cited by BW as permitting charges to be levied for excess mooring on 24 and 48 hour moorings, to demand payments for licence and to set charges for late payments.

Compliance is sought by BW through the serving of sections’ 8 (removal of home) and 13 (destruction of home) of the 1983 and 1971 BW Acts respectively.

Problems to Address

Opinion from Counsel (Doughty Street and Serle Court) states that section 43 of the 1962 Transport Act has a broad a remit and should not be read in isolation, but may be read in conjunction with subsequent legislation.
Boats with no home mooring are required, under section 17.3.c.ii of the 1995 BW Act, to navigate in good faith without remaining in one place for 14 days or longer if reasonable. The requirement to bona fide navigate is sometimes referred to as the 14 day rule. BW interpret the 14 day rule as a maximum mooring period – or less where signage sets a 24 or 48 hour mooring restriction. It should be suggested that 14 days is the minimum period where reasonable and not the maximum. Previous Guidelines (that draw upon section 43 of the 1962 Transport Act) define bona fide navigation to be a planned journey from parish to parish, and this is now under review, with the intention of enforcing navigational patterns beyond reasonable expectations - 20 miles or more. This had led to great anxiety among boaters and at least one boater attempting suicide.

Such interpretation of law and its application through enforcement serves to deny a boater access to work, education, social security and housing benefit, and many boaters consider this draconian. This is especially true where access to education, employment and benefits are dependent upon public transport. BW’s interpretation and practice denies liveaboard boaters the right to basic needs and to life itself. As a matter of urgency, BW’s use of section 43 in conjunction with section 17 must be addressed.

Finally, BW’s licencing regime must be clarified. More than 35,000 boats on the inland waterways are licenced as pleasure boats and the requirements of the 1971 BW Act in conjunction with section 17.3.c.ii of the 1995 BW Act are that pleasure boats engage in bona fide navigation. A significant proportion of pleasure boats have mooring permits permitting a boat to remain in one place indefinitely. This is contradictory to the stated requirements of section 17. Despite this conflict between law and guidelines, boats with mooring permits are permitted to remain as static vessels, while the 3,500 pleasure boats with no home mooring are routinely targeted by BW patrol staff with patrol notices enforcing compliance with section 17.3.c.ii. This is disproportionate and suggests inaccuracies in BW’s interpretation and enforcement procedures or else an incorrect interpretation and application of licencing/certification. It is possible that many pleasure boats are actually houseboats incorrectly licenced. More likely is that BW’s interpretation of bona fide navigation is incorrect. The latter is probably true if the intention of parliament is considered. This intention can be referenced in parliamentary notes made during the drafting of the 1995 Act as a Bill. Details of this are available upon request to the NBTA.

Additionally, there are inconsistent problems with licencing terms and conditions linked to pleasure boats with mooring permits. Recently, BW refused a mooring permit for a pleasure boat seeking a home mooring on the Kennet and Avon canal. The permit application was refused on the basis that the individual boater lived on his boat and had no other place of residency. BW stated that a boater was not permitted to remain living permanently on their boat mooring, citing their terms and conditions for a mooring permit. The Board then sold the mooring to another knowing full well that this boater also lived on their boat! These t&c’s refer to section 43 of the Transport Act, although this was not clearly stated. I suggest that the BW Acts of 1971, 1983 and 1995 do not preclude use of a boat as a home, and any refusal by BW to grant a mooring permit on this basis may be ultra vires.

Resolution and Security.

Possession of the relevant consent on EA or BW managed waterways is an insecure tenancy. The objective of any lobbying or campaign work by Liberty should therefore be to secure tenancy, and through legislation. Negotiation should therefore extend beyond the navigation authority and into parliament itself.

Personal opinion.
Paul Davies 11th November 2011
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ref.
Decision of the Social Security Commissioner: File number:CH 844 2002. Section 10.a-g

Section 43 of the 1962 Transport Act

Section 13 of the 1971 British Waterways Act

Section 3 of the 1976 General Canal Byelaws

Section 8 of the 1983 British Waterways Act

Section 17.3.c.ii of the 1995 British Waterways Act

Section 5 of the 2010 Environment Agency (Inland Waterways) Order

Articles' 8 of ECHR