Gypsy and Traveller site allocation policy defended

September 20, 2019

A city council recently successfully defended a judicial review challenge over its Gypsy and Traveller site allocations policy. Adrian Davis analyses the judgment.

On 3 September 2019 the High Court gave judgment in the case of R (on the application of Caroline McDonagh) v Newport City Council. The court upheld the lawfulness of Newport City Council’s Gypsy and Traveller site allocation policy and its decision that the claimant was not eligible for a caravan pitch under the provisions of the policy.

The claimant’s principal argument was that the policy was unlawful because the council had failed to comply with the public sector equality duty in section 149 Equality Act 2010. Newport City Council’s success in defeating that argument was grounded in its detailed equalities impact assessment of its policy. This case shows that if local authorities carry out (and record) comprehensive equalities assessments of their policies, it is likely to be very difficult for claimants to successfully argue a failure to comply with the public sector equality duty.

The facts

The claimant was an Irish Traveller. Until the age of 17, she lived in conventional housing with her parents. After leaving the family home in 2012, she applied to Newport City Council for housing assistance, indicating that she would consider either a caravan/mobile home or bricks and mortar accommodation. Thereafter, the claimant claimed she had spent the next seven years living in a caravan on unauthorised sites.

In late 2016 the claimant applied under the policy for a caravan pitch on a site that was being developed by Newport City Council. The policy stated that applicants had to satisfy three criteria:

be aged over 16;
meet the definition of a Gypsy or Traveller (within section 108 Housing (Wales) Act 2014); and importantly
be able to demonstrate an ‘aversion to living in bricks and mortar accommodation’.

It was common ground that the claimant satisfied the first two criteria.

As to the third criterion, after receiving numerous representations from the claimant which suggested she had a strong preference for living in a caravan, the council decided she had not demonstrated an aversion to living in bricks and mortar accommodation. The reasons for its decision were:

the claimant had lived in conventional housing for three quarters of her life;
in her original application in 2012, the claimant had indicated that she would consider conventional housing; and
in an interview with the council’s homelessness officer in September 2017, the claimant said she was happy to consider bricks and mortar accommodation and agreed to look for bedsit accommodation as part of her Personal Housing Plan.

Accordingly, the council decided that the claimant was not eligible for allocation of a caravan pitch under the provisions of the policy.

The challenges

The claimant brought a claim for judicial review challenging the lawfulness of both the policy itself and the decision that she was not eligible for caravan pitch.

In respect of the policy, the claimant said it was unlawful because:

Newport City Council had failed to comply with the public sector equality duty in section 149 Equality Act 2010, in particular that it had failed to have regard to the need to advance equality of opportunity between persons who share a protected characteristic (i.e race) and those persons who do not share it;
the policy failed to define the word ‘aversion’; and
the council had misdirected itself as to the meaning of the word ‘aversion’.

As to the decision that the claimant was not eligible for a caravan pitch, she said that Newport City Council had failed to take account of a number of relevant factors and the decision was irrational.

The court’s decision

The High Court dismissed the claimant’s claim for judicial review in its entirety. In doing so, it upheld the lawfulness of both the policy and the council’s decision that the claimant was not eligible for a caravan pitch.

The court held that:

the policy was not unlawful because it did not contain a definition of the word ‘aversion’. ‘Aversion’ is a word in common usage meaning ‘a strong dislike’ or ‘a strong disinclination’.
Newport City Council had not misdirected itself as to the meaning of the word ‘aversion’ in the policy. Furthermore, the claimant was wrong to suggest that ‘aversion’ and ‘a strong preference’ amounted to the same thing; they did not.
the council had not failed to comply with the requirements of the public sector equality duty. It had carried out a full assessment of the impact of the policy on all the protected characteristics including race. In the circumstances, it had had due regard to the need to advance equality of opportunity between Gypsies and Travellers on the one hand, and non-Gypsies and Travellers on the other.
Newport City Council had taken into account relevant factors when reaching its decision that the claimant was not eligible for a caravan pitch. Although its decision letters did not expressly set out matters raised by the claimant in her representations, the council were clearly aware of them and there was a presumption that they were taken into account. There was nothing in the papers to displace that presumption.
In all the circumstances, neither the policy nor the decision could be said to be irrational.

Adrian Davis is a barrister at Field Court Chambers. He successfully represented Newport City Council.