Offer of bricks and mortar housing to homeless travellers not unlawful, rules Court of Appeal

March 21, 2012

Basildon Council did not act unlawfully when it offered bricks and mortar accommodation to homeless travellers, the Court of Appeal has ruled.

The appellants in Sheridan & Ors v Basildon Borough Council [2012] EWCA Civ 335 had all lived on the unauthorised site at Dale Farm that was cleared in 2011.

It was common ground that all three appellants were eligible for housing assistance, were not intentionally homeless, and were in priority need.

At issue was whether Basildon had discharged its duty under s. 193(2) of the Housing Act 1996 to provide suitable accommodation for occupation by the appellants.

All three appellants rejected the accommodation offered by the council as unsuitable. In each case the request for a review was made on the sole ground that the appellant had an aversion to bricks and mortar accommodation.

In one case (Mrs Flynn), this was put largely on cultural grounds. In the cases of Mr and Mrs Sheridan (who are separated) psychiatric reports were also provided to Basildon’s review panel.

The consultant psychiatrist reported that Mr Sheridan’s mood would deteriorate if he was forced to move to any bricks and mortar accommodation and that he would become deeply depressed.

The report also suggested that, overall, there would be a significant risk of Mr Sheridan suffering psychiatric harm if he was forced to accept the accommodation proposed by Basildon. It would not be overstating it to suggest that it “could amount to a death sentence for him”, the psychiatrist said.

The psychiatrist added that he believed Mrs Sheridan would experience significant depression and anxiety if she was forced to move into bricks and mortar accommodation, even if the house were of high quality. However, he said it was difficult to predict just how depressed she would become.

The review panel received written submissions from the appellants’ solicitors setting out their clients’ objections to the accommodation offered, as well as a report from a planning consultant that analysed Basildon’s site provision in the years before the decision to close the unauthorised site at Dale Farm. It pointed out, amongst other things, that the last planning permission was in 1999.

The consultant’s report also listed and analysed proposed sites put forward by the Dale Farm Housing Association.

The review panel considered the material and the psychiatric reports on Mr and Mrs Sheridan, but decided that in each case that the various properties offered were of a suitable size and type for the appellants’ housing needs.

On the sites proposed by the planning consultant’s report, it said that five were not within the district, two could not be identified and the remaining three were unsuitable due to their location. Purchasing land as a site was rejected as lying outside the scope of the council’s housing duty under s. 193.

Its decision letter claimed that genuine consideration had been given to ways and means to meet their needs arising from their way of life, but there were no pitches available on any of the caravan sites provided by Essex County Council.

The appellants took their case to Southend County Court but were unsuccessful.

At the Court of Appeal they advanced three grounds:

In the case of Mr and Mrs Sheridan, the review panel made an error of law in deciding that the accommodation satisfied the minimum Wednesbury standard given the evidence of the consultant psychiatrist about the consequences of Mr and Mrs Sheridan being housed there;
In the case of Mr and Mrs Sheridan, the council was not entitled to rely on the lack of any available caravan pitch as part of its determination of suitability when this state of affairs was the direct result of its own failure to make adequate site provision for gypsies and travellers since 1999;
In all three cases, the council failed to conduct sufficiently extensive enquiries as to the current availability of either permanent or at least temporary sites which could accommodate the appellants’ caravans.

The Court of Appeal ruled in favour of Basildon. Giving the judgment of the court, Lord Justice Patten said:

If the local authority has no available accommodation in the form of a caravan site, it is not required to acquire land as part of its duty to provide accommodation for the applicants;
The provisions of s. 193 contemplate the performance of the duty using the housing authority’s existing resources within a limited timescale;
A cultural aversion to bricks and mortar “is not enough to make the offer of such accommodation Wednesbury unreasonable even if (as in Mrs Sheridan’s case) it may risk bouts of depression. It is reasonable for those to be treated if they occur in just the same way as she has sought and obtained treatment for depression in the past”;
The answer to the s. 204 appeals of both Mr and Mrs Sheridan is that the risk of depression (and in the case of Mr Sheridan of a possible collapse in his medical regime) is the consequence not of the offers of accommodation which have been made but of the applicants’ removal from Dale Farm;
The physical separation of Mr and Mrs Sheridan was the inevitable result of their removal from Dale Farm under the powers sanctioned by the court in the earlier proceedings coupled with their decision not to seek accommodation together as a single family unit;
Faced with these circumstances, the review panel was entitled “to treat the risk of psychiatric harm as an existing problem which would not be avoided by any offer of accommodation within the terms of the separate applications which they had to consider”;
It was not therefore Wednesbury unreasonable of them to proceed on the basis that Mr Sheridan’s psychiatric problems should be dealt with through the use of local NHS services. The same applied to Mrs Sheridan;
It was difficult to see what the appellants’ reliance on Article 8 of the European Convention on Human Rights added to the case.

Lord Justice Patten also acknowledged that the appellants’ counsel made “powerful” points about the inadequacy of Basildon’s provision of sites and the wording of its current homelessness strategy, which simply stated that there was not suitable land for mobile accommodation. But he was not persuaded that they could be addressed through the medium of a s. 204 appeal.

“It seems to be completely unrealistic to expect a housing officer on a s. 202 review to conduct a general inquiry into strategic questions about the preparation of a homelessness strategy and the adequacy of site provision,” he said.

Such reviews must have been intended to have a much narrower focus of whether the offer of accommodation from within the housing authority’s existing resources adequately met the applicants’ needs, the judge concluded.

Lord Justice Patten also said he rejected the submission that there were other possible sites “because there is really no evidence to support it”. The specific points raised by the planning consultant were considered, he said, and there was really no material from which it could be said that the council or the review panel had overlooked an obviously suitable site even if of a temporary kind.

The s. 202 decisions reached by the review panel did not disclose any error of law, the judge found.

Cllr Tony Ball, leader of the council, said: “I welcome the decision of the court today which vindicates the council’s offer of bricks and mortar as one that was appropriate. It will also be welcomed by many local people.

“The principles of upholding the law while at the same time treating the travellers appropriately and fairly have been at the heart of this council’s approach throughout our dealings with the former Dale Farm community and other travellers.”

Basildon meanwhile announced that it had served planning contravention notices on the occupiers of caravans stationed on the track leading to Dale Farm as well as on the lawful pitches off Oak Lane, which it said were overcrowded in breach of regulations.

The families now have 21 days to respond to the notices and leave. “If they do not leave the area within the time allowed, the council will consider the most appropriate action to take to ensure compliance with the law,” Basildon said.

Philip Hoult and Derek Bedlow