IpsofactoJ.com: International Cases [2004] Part 13 Case 15 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Leanne Codona

- vs -

Mid-Bedforshire

District Council

LORD JUSTICE AULD

LORD JUSTICE THOMAS

MR JUSTICE HOLMAN

15 JULY 2004


Judgment

Lord Justice Auld

  1. This is an appeal by Mrs Leanne Codona from an order of His Honour Judge Farnworth, sitting at the Luton County Court, on 21st November 2003 upholding a decision of the respondent, the Mid-Bedfordshire District Council ("the Council"), of 8th May 2003 on a review under section 202 of the Housing Act 1996 that an offer to her and her family of conventional "bricks and mortar" accommodation would discharge its duty to secure accommodation for them under sections 193, 176 and 206 of the Act.

  2. The central issue in the appeal, which is contained within three grounds of appeal on which Chadwick LJ gave permission to appeal, is whether a local housing authority discharges its duty under the 1996 Act to secure suitable accommodation for a homeless gypsy caravan dweller, with an aversion to conventional "bricks and mortar accommodation", by offering her such accommodation in the form of temporary bed and breakfast accommodation.

  3. There are two further grounds, in respect of which Chadwick LJ refused permission, but gave Mrs Codona permission to renew before the full Court, which, to the extent that they are arguable, add nothing of substance to the main issue.

    The facts

  4. Mrs Codona, her two and half year old son and other members of her extended family, who are of traditional Romany gypsy stock live in caravans on what has become known as Plot 7 Woodside Caravan Park at Hatch, Near Sandy in Bedfordshire. Mrs Codona and her family were part of a group of gypsies who moved onto the site with their caravans in breach of planning control in mid 1997. Over a period of time the site was divided into 27 plots.

  5. The Council first learned in early August 1997 that the gypsies were occupying the site. In April of the following year, one of the gypsies, Fred Smith applied to the Council for outline planning permission to build four dwellings, each with a garage, access and use of land as a paddock on the site, an application that he withdrew shortly afterwards. In October 1998 the Council served enforcement and stop notices on the occupiers of the site, which they appealed.

  6. In May 1999 an inspector held a local public inquiry into the appeals under section 174 of the Town and Country Planning Act [1990] On 29th June 1999 he issued a decision letter dismissing the appeals, but also giving them 12 months within which to comply so as to enable them to apply for planning permission in respect of smaller areas. They seemingly took no steps to comply with the enforcement or stop notices, and the Council, in the course of late 1999 and early 2000, resolved to take enforcement action, either by way of injunction or prosecution. At about the same time the occupiers, styling themselves "the owners of Woodside Caravan Park", made a further planning application in respect of the site, essentially to continue its use as a caravan park, but with more landscaping than previously proposed.

  7. The Council continued with its intention to take enforcement proceedings, subject to the outcome of the new planning application, and in April, and again in May 2000, wrote to the occupiers’ agent enquiring as to their "needs", each time without reply. In July 2000, shortly after the expiry of the 12 months period of grace allowed by the inspector for complying with the enforcement notices, the Council refused permission. The occupiers appealed that refusal. In late 2000 an inspector held an inquiry to consider that appeal, and in January 2001, dismissed it.

  8. The Council then, over the course of a number of meetings in the first half of 2001, resolved to issue proceedings for an injunction requiring the occupiers to leave the site and, if necessary, to enforce it by self-help pursuant to section 178 of [1990] Act. Early in 2001, before the Council could issue the proceedings, the occupiers, including Mrs Codona, made 19 planning applications in respect of individual plots on the site, one of which was for four plots on the front part of the site to accommodate 12 caravans for four families and improved access.

  9. In the summer of 2001 the Council refused all those applications, save that for the four plots on the front of the site, in which Mrs Codona has no interest and which remains undetermined. 11 occupiers of the site, including Mrs Codona, appealed the refusals.

  10. In the meantime, in August 2001, the Council issued proceedings for injunctions against named and un-named occupiers of the site by alternative methods of service, to which the latter responded in September 2001 by seeking and obtaining permission to claim judicial review.

  11. In late 2001 and early 2002 an inspector held an inquiry into the 11 individual appeals from the Council’s refusals of planning permission in the summer of 2001, and, in June 2002, dismissed them. The Council then immediately sought and obtained, after a three day hearing, before Mr J. Goudie QC, sitting as a Deputy High Court Judge, in which Mrs Codona’s parents-in-law gave evidence, an injunction against her and all the other occupiers of the site to remove themselves, their caravans, all hard standings and associated materials from the land by 1st November 2002.

  12. As before, Mrs Codona responded by making a further planning application, this time in relation to three plots on the site. The Council, pursuant to its powers under section 70 of the 1990 Act, refused to determine the application because of its close similarity to the previous application. Mrs Codona sought, without success on paper, permission to claim judicial review in respect of that decision. And at about the same time she and other occupiers applied to the High Court to vary the order of Mr. Goudie QC as to the date when they should leave the site, and also to the Council for accommodation as homeless persons under the 1996 Act.

  13. In early November 2002, a few days after the date set by Mr. Goudie QC’s order for the occupiers to leave the site. Jackson J rejected their application for variation of the order and refused them permission to appeal. Within a few days thereafter, the Council, exercising its powers under section 178 of the 1990 Act, cleared all the occupiers from the site, except for those on the four front plots and Mrs Codona and her family occupying, with some six or seven caravans, Plot 7 in the rear field.

  14. In late December 2002 the Court of Appeal upheld Jackson J’s refusal of permission to appeal his refusal to vary Mr Goudie QC’s order. That still left Mrs Codona’s application for judicial review, which she had indicated an intention of renewing orally, and her and her family’s homelessness application. Mrs Codona did not in the event persevere with the renewal application, on the Council agreeing not to enforce the injunction without first giving her and her family seven days notice of its intention to do so and to consider and determine their homelessness application of 30th and 31st October 2002.

  15. I should now return to that application, which was in effect that the Council should provide Mrs Codona and her extended family with a pitch on which they could site some six or seven caravans. In the application she explained that she had an aversion to conventional "bricks and mortar" accommodation and that she:

    .... [did] not wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs Codona wishes to live in a caravan and have the support of her extended family around her.

  16. I should interpolate at this point that the weight to be given by a local housing authority when deciding what property to offer a person with such an aversion should, it seems to me, turn on the degree of its intensity and of its potential effect on that person if not heeded, rather than any claimed "cultural" basis for it. Here, although there was evidence that Mrs Codona would find it "unbearable" and claustrophobic to live in a house, there was no evidence that it would cause her or her son or any of her extended family psychiatric harm, as distinct from an assertion from a counselling psychologist that housing the Codona family in "bricks and mortar" accommodation "would undoubtedly result in psychological harm".

  17. On 4th March 2003 the Council, acting through Aragaon Housing Association to which it had delegated its housing functions, accepted, by letter to Mrs. Codona, its duty under the 1996 Act to provide her and her family with suitable accommodation, but concluded that it could only offer them "bricks and mortar" accommodation in a "bed and breakfast establishment" until it could make a final offer of accommodation acceptable to them. Because it is part of Mrs Codona’s case, and the subject of her proposed fourth ground of appeal, that the Council, in reaching that decision, had no regard to her and her extended family’s human rights, I had better set out the terms of the letter material to that suggestion:

    The Association .... have a duty to secure suitable accommodation is available for your occupation and, in doing so, shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you.

    The Association is aware there are six/seven caravans on Plot 7, Woodside Caravan Park, Hatch, the occupants of which you have included in your homelessness application. The Association is also aware that you consider the occupants of these other vehicles as a part of your immediate household and that you have requested they be accommodated with you. In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider an offer of a plot/piece of land.

    Unfortunately, as you are aware from previous meetings, the Association is unable to offer land and can only secure accommodation from either its own housing stock or, on some occasions, property owned by another Housing Association also operating within the Mid Beds area. Further, it is also highly unlikely the Association will be able to secure a single property large enough to accommodate all the occupants of Plot 7, Woodside Caravan Park. However, given that each family occupying Plot 7 resided in their own separate unit of accommodation, the Association does not consider it unreasonable to offer an individual property for each family on Plot 7 and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible.

  18. Whilst that letter makes no express reference to human rights, in particular to Article 8 of the European Convention of Human Rights (" ECHR"), it is plain, as Judge Farnworth was to observe in his judgment, that the Council’s approach was compatible with the requirements of Article 8 and Strasbourg jurisprudence on it.

  19. Mrs Codona and her family were dissatisfied with that offer, and, through solicitors, sought an internal review pursuant to section 202 of the 1996 Act. On 8th May 2003, the officer conducting the review wrote to Mrs Codona upholding the offer of bed and breakfast accommodation, stating that, in considering the suitability of the accommodation offered, he had had regard to all the relevant circumstances, including her "cultural" aversion to living in bricks and mortar accommodation and to her family way of life. He stated that, in reaching his decision, he had been guided, not only by the relevant provisions of the 1996 Act, but also the Homelessness Code of Guidance for Local Authorities (July 2002). This is how, so far as material, is what he wrote:

    In relation to the question about reasonableness [sic] of an offer of Bed & Breakfast or other temporary accommodation I have reached the following conclusions:

    ....

    .... [The 1996] Act and the Code .... also provide clarity of what constitutes suitable accommodation. Bed & Breakfast is deemed to be suitable accommodation particularly as .... the Council have already confirmed that they will take all reasonable steps to minimise its use. Wherever reasonably practical the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [a reference to section 210 of the 1996 Act]

    .... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences (sic) which you would have to face having always lived in a caravan. I understand that you are concerned about living without the support of your family but again .... [the Council] have advised that all practical steps would be taken to accommodate you as a close family unit.

    Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed .... I find that, while sympathetic to them, I must also take into consideration the general makeup and stock of housing within the area and also the availability of suitable accommodation that .... [the Council] can access. Mid Beds must also act within the available legislation and this leaves us with no alternative but to offer bricks and mortar accommodation.

    ....

  20. Mrs Codona then appealed to the County Court under section 204 of the Housing Act 1996. Judge Farnworth, accepted that the Council owed a statutory duty to Mrs Codona and her family to secure that suitable accommodation was made available to them and that she had a "cultural" aversion to living in "bricks and mortar" accommodation. However, he held that, in the circumstances, the Council’s offer was an adequate discharge of its duty under section 193.

    The law

  21. Under section 193(1) and (2) and 206 of the 1996 Act the Council has a duty:

    to provide individuals with [suitable] accommodation if they are homeless or threatened with homelessness within twenty-eight days, have a priority need for accommodation, are unintentionally homeless and have a connection with their area.

  22. The Act, in section 175(2)(b) of the Act appears to contemplate that a caravan pitch offered to a caravan owner and dweller who is homeless, as a result of eviction from another pitch or simply unable to find a pitch, may be a discharge of an authority’s duty under section 193, that is, the offered pitch may be treated as suitable alternative "accommodation" for this purpose. It provides:

    (2)

    A person is .... homeless if he has accommodation but –

    ....

    (b)

    it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

  23. On a local housing authority becoming satisfied that such a person is homeless within the meaning of the Act, section 193(2) of the Act obliges it to secure that accommodation is provided for his occupation. It does not provide in terms that an authority must discharge its obligation by providing a site for the applicant’s caravan, but the parliamentary draftsman must have intended that it could discharge its duty to secure accommodation in that way. In anticipation of, and in answer to, an argument by Mr Joseph Harper QC, on behalf of the Council, it is, in my view, inconceivable that the draftsman should have intended, where the applicant still has his caravan but nowhere to put it, that an authority could not satisfy its duty to secure the provision of accommodation by providing him with an empty pitch for it, but only by the offer of a pitch and caravan on it or of conventional housing. It does not follow that an empty pitch is in itself "accommodation" that an authority may be required to provide, but when it is made available, with the agreement of the applicant, as a site for his or her caravan, the authority has, by achieving that joinder, effectively discharged its duty to provide accommodation. That may be the ideal solution, but, as the Code of Guidance, in paragraph 11(40) advises:

    .... If a duty to secure accommodation arises in such cases, the housing authority are not required to make equivalent accommodation available (or provide a site or berth for the applicant’s own accommodation), but they should consider whether such options are reasonably available, particularly where this would provide the most suitable solution to the applicant’s accommodation needs.

  24. Importantly, the 1996 Act requires, in section 206, that alternative accommodation offered must be "suitable". However, it does not in general terms define the meaning of that word in this context. (cf section 210). The Courts have interpreted it as accommodation suitable in the circumstances of each case to the needs of the homeless applicant and his or her resident family, including variously such considerations as the nature, location and standard of condition of the accommodation. The drawing of the line between suitability and unsuitability is necessarily highly fact-sensitive, but, as will be seen, it has generated some jurisprudential attention.

  25. A local authority has no statutory duty under the 1996 Act or otherwise to provide caravan sites for gypsies or other caravan dwellers who might, for want of such provision, be unable to find a site to station their caravans. Nor has it any duty under Article 8 to provide gypsies with a home, or to provide for the gypsy community an adequate number of suitably equipped sites; see Chapman v United Kingdom (2001) 33 EHRR 18, at paras. 98 and 99. However, it has a power provided by section 24 of the Caravans Sites and Control of Development Act 1960 to provide such sites.

  26. As I have indicated in my summary of the facts, the Council accepted that it owed Mrs Codona and her extended family a duty to secure accommodation for them as homeless persons and that, among the relevant circumstances in considering how to discharge it, were her aversion to conventional "bricks and mortar" accommodation and its inability at the time to provide a caravan site on which they could lawfully pitch their caravans.

    The issues and the submissions

  27. As I have said, the central issue in the appeal is whether a local housing authority discharges its duty under the 1996 Act to secure suitable accommodation for a homeless gypsy caravan dweller, with an aversion to conventional "bricks and mortar accommodation", by offering her such accommodation in the form of temporary bed and breakfast accommodation.

  28. Mr David Watkinson, for Mrs Codona and her family, prefaced his submissions by some general propositions of law, namely:

    1. a local housing authority has a duty under sections 193 and 206 of the 1996 Act to secure to a homeless applicant accommodation suitable for him and his family;

    2. although each case turns on its own circumstances, there is a minimum level of suitability;

    3. an authority has an absolute duty to provide accommodation to that minimum level, regardless of its lack of resources;

    4. conventional "bricks and mortar" accommodation cannot be suitable, even as temporary accommodation, for a gypsy who has a "cultural" aversion to it; and

    5. an authority has the ability, if necessary, to use its power to provide the resources under section 24 of the Caravan Sites and Control of Development Act 1960, or its more general powers under section 11 of the Local Government Act 2000; see R (on the application of J) v London Borough of Enfield and SSH, per Elias J at paras 51-53.

  29. Mr Watkinson then put the three grounds of appeal giving rise to main issue in the following way:

    1. that the Judge, having accepted that Mrs Codona, as a gypsy, had a cultural aversion to "bricks and mortar" accommodation, should have found that the Council’s offer of such accommodation was not "suitable" for the purpose of discharge of its duty under sections 193, 176 and 206 of the 1996 Act

    2. that, in failing so to decide, the Judge did not properly apply the test of Henry J in R v London Borough of Brent, ex p. Omar (1991) 23 HLR 446, at 457 and 459 and succeeding cases that "suitability" for this purpose means suitable as accommodation for the person or persons to whom the duty is owed, including any medical evidence on that question;

    3. that he also wrongly failed to find that the Council’s lack of resources was irrelevant to the issue of discharge of its duty, and that it should not, therefore, have considered it; and

    4. that, in any event, there was no evidence that the Council had done all that it could have done to obtain a site or use its statutory powers to assist it in doing so.

  30. The further (proposed) grounds, on which Mr Watkinson also sought to rely by way of renewal of application for permission to appeal, were that both the Council and the Judge had failed to consider on the issue of "suitability" of the "bed and breakfast" accommodation offered: 4) whether it breached Articles 8 and/or 14 ECHR, as showing lack of respect for Mrs Codona’s private or family life or home and/or as treating her less favourably than a non-gypsy homeless applicant; and 5) the likely duration and its effect on Mrs Codona on the question whether the offer was or could have been suitable in the circumstances. As I have already noted these two arguments are very much bound up with, and/or add nothing of substance to, grounds 1- 3 comprising the main issue as to "suitability" of alternative accommodation offered.

  31. Mr Harper submitted on behalf of the Council that that the word "suitable" in this context related to the standard of condition, tested on a Wednesbury basis, of the accommodation offered, not to its range or nature or location. As I have indicated, he also queried whether an empty caravan pitch could constitute "accommodation" for the purpose of the Act. As to the latter, he may be right, to the extent that an empty caravan pitch may not in itself constitute accommodation for the purpose of section 193(2). However, as I have said, if an authority chooses, with the applicant’s agreement, to "accommodate" him by providing him with a pitch for his caravan, it would, in my view, serve as a discharge of its duty under that provision. Whether or not an empty caravan pitch strictly amounts to accommodation, considered on its own, does not bear on the main issue in this appeal, namely whether the Council, by reason of its acceptance of Mrs Codona’s aversion to "bricks and mortar" and notwithstanding its inability to provide her and her family with an empty pitch, was in breach of the duty.

  32. Mr Harper’s primary submission was taken from the reasoning of Carnwath LJ in Kayes & Traylen, at para. 12 (see paragraph 34 below), namely that the Council acted legitimately in offering conventional "bricks and mortar" accommodation to Mrs Codona and her family, given the absence of any land available to it on which they could station their caravans. The fact that her aversion, as a gypsy, to such accommodation was a circumstance relevant to the Council’s assessment of the suitability of any accommodation that it offered to her and her family, did not, he submitted, oblige it to provide a caravan site for them when none was available. In effect, her and her family’s personal characteristics were trumped by the Council’s lack of resources. Accordingly, he maintained that the Judge was entitled to hold, notwithstanding his acceptance of Mrs Codona’s "cultural" aversion to "bricks and mortar" accommodation, that such accommodation was "suitable" in the circumstances, and that he was entitled, in so finding, to take into account the Council’s lack of resources.

    The authorities on the meaning of "suitability"

  33. The authorities suggest a number of basic propositions for the criteria of suitability of accommodation for offer to statutorily homeless persons. First, as I have briefly mentioned, "suitability" means, as Henry J reasoned in ex p. Omar, suitable as accommodation for the person or persons to whom the duty is owed.

  34. Second, and contrary to Mr Harper’s submission on this point, the word, if it is to do its job adequately in this context, must have a broad meaning. It must, as a matter of common-sense encompass considerations of the range, nature and location of accommodation as well as of its standard of condition and the likely duration of the applicant’s occupancy of it. Standards of the condition of property are clearly important, as the facts of ex p. Omar illustrated, and as Collins J. and Dyson J (as he then was) noted respectively in R v Newham LBC, ex p. Begum (1999) 32 HLR 808 and R v Newham LBC, ex p, Sacupima (2001) 33 HLR 1. In ex p. Begum, Collins J said at 816:

    .... whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks. But there is a line to be drawn below which the standard of accommodation cannot fall.

  35. But so also, in individual cases, must the nature of the property, for example, whether it is flat in a high rise block of flats or a house with stairs, or whether it is too small or too big for the applicant and his or her family. Similarly, it is obvious that location could be of great relevance to the suitability of accommodation offered to particular applicant, for example, whether it is readily accessible to public transport or shops or schools or a local doctor, or whether it is in an area of high crime or racial harassment in respect of which the applicants, by reason of their race or religion might be particularly vulnerable.

  36. Third, the duty to provide suitable accommodation is absolute in the sense that there is no statutory entitlement of, or duty on, a local housing authority, when determining suitability, to have regard to its resources or general practicability of offering accommodation to homeless persons. For that reason, I do not, with respect, consider that it would be sufficient, as Carnwath LJ suggested in Kayes & Traylen v Waverley BC [2003] EWCA Civ 433, in paragraph 12 of a short judgment dismissing an application for permission to appeal, that:

    suitability has to take account of practicality. There is no point in .... [an] authority being required to provide sites which do not exist.

  37. Nevertheless, as Dyson J observed in ex p. Sacupima, at paragraphs 23 and 24 of his judgment, suitability is not itself an absolute concept. It may have various levels, though there is a Wednesbury minimum depending on the circumstances of each case, below which it cannot fall. In the following passage in paragraph 24 (seemingly accepted by this Court on appeal ((2001) 33 HLR 18, per Latham LJ at para 21, with whom Sir Murray Stuart-Smith and Henry LJ agreed), he explained what he meant, citing in part from a judgment of Collins J in R v Newham LBC, ex p Ojuri (No 3) (1998) HLR 452, at 461:

    Although financial constraints and limited housing stock are matters that can be taken into account in determining suitability, ‘there is a minimum and one must look at the needs and circumstances of the particular family and decide what is suitable for them, and there will be a line to be drawn below which the standard of accommodation cannot fall’. If the accommodation falls below that line, and is accommodation which no reasonable authority could consider to be suitable to the needs of the applicant, then the decision will be struck down, and an appeal to the resources argument will be of no avail.

  38. And, fourth, where it is shown that a local housing authority has been doing all that it could, the court would not make an order to force it to do the impossible. Its duty was to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of that period depending on the circumstances of each case and on what accommodation was available. In ex p Begum, Collins J said, at 816:

    .... Parliament has not qualified the duty in any way: it could have done. However, the situation for the council is not quite so desperate as might be thought. While the duty exists, no court will enforce it unreasonably. Mr Luba [counsel for the applicant] accepts that it would be unreasonable for an applicant to seek mandamus within a few days of the duty arising if it were clear that the council was doing all that it could, nor, in its discretion, would a court make such an order. Indeed, permission would probably be refused.

  39. It is plain from the reasoning of Collins and Dyson JJ in those cases that suitability in this context should be regarded as an elastic concept in that the line below which no reasonable authority could consider accommodation to be suitable in an individual case is the Wednesbury line. So, on that approach, and subject to Article 8 considerations, the question for the Council and for Judge Farnworth, applying those general principles would be whether the offer by the Council of "bed and breakfast" accommodation to Mrs Codona and her extended family, given her aversion to "bricks and mortar" accommodation, falls below that line.

  40. Mr Watkinson submitted that, for a gypsy, with such an aversion, the minimum standard of suitability is a caravan site on which he or she can station his or her caravan. He relied by way of analogy on some words of Burton J in a planning case, Thomas Clarke v SOSETR [2001] EWHC Admin 800, which concerned an Article 8 challenge by a gypsy averse to conventional "bricks and mortar" accommodation, to a planning authority’s refusal of an application to station a caravan for residential use by a gypsy:

    33.

    .... In order for the issue to be arrived at with which I have to deal, the person must satisfy the Inspector that he and/or his family do indeed subscribe to the relevant tenet or feature of Gypsy life in question here, namely he or she genuinely has, and abides by, a proscription of, and/or an aversion to, conventional housing: to bricks and mortar. Many Gypsies, certainly many Romanies, as I understand it, do not, and are not, prepared to live in bricks and mortar, but many, perhaps even many Romanies, may well-do or are prepared to do so, and each particular person or family must establish the position to the satisfaction of the Inspector.

    34.

    .... if such be established then, in my judgment, bricks and mortar, if offered, are unsuitable, just as would be the offer of a rat infested barn. It would be contrary to Articles 8 and 14 to expect such a person to accept conventional housing and to hold it against him or her that he has not accepted it, or is not prepared to accept it, even as a last resort factor.

  41. However, the Judge went on to indicate that there was still an Article 8 balancing exercise to be undertaken. In a passage expressly approved by Buxton LJ, with whom Laws LJ and Douglas Brown J agreed, in upholding his decision on appeal ([2002] EWCA Civ 819, at paras.12 and 15), he said:

    35.

    .... this does not mean that in such a case planning permission must or will be granted. An authority or an Inspector may still, having considered the planning factors, and the personal circumstances of the applicant or appellant, including the fact that there is no accessible or alternative site or suitable accommodation, refuse planning permission ....

  42. The Article 8 exercise of balancing of countervailing factors in a planning case, such as that in Thomas Clarke, is, in formal terms different from determining "suitability" of offered accommodation in a homelessness application, as Carnwath LJ implicitly noted in paragraph 10 of his judgment in Kayes & Traylen. However, as he went on in the same paragraph to observe, in the context of an Article 8 challenge based on an aversion to conventional bricks and mortar accommodation to such an offer, the factual question for the court is much the same. That is because suitability of offered accommodation in a homeless case now has the gloss of Article 8, which requires a balancing of countervailing factors where they exist. And, in the conduct of such a balance, it is, therefore, simplistic and misleading to suggest, as Mr Watkinson did, that in a homelessness case, if accommodation is unsuitable because of a gypsy’s "cultural" aversion to "bricks and mortar" accommodation, that is, the end of it because there are no other considerations to weigh in the scale.

  43. Mr Watkinson had to grapple with a decision more in point of Newman J in a homelessness application by an Irish traveller with an aversion to living in conventional bricks and mortar accommodation, R (on the application of Margaret Price) v Carmathenshire County Council [2003] EWHC 42 (Admin). In that case, unlike this, the main issue was whether the gypsy applicant had an aversion to bricks and mortar accommodation. But Newman J had to consider, as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable alternative accommodation. At paragraphs 13 to 15 of his judgment, he rejected submissions on behalf of the applicant based on Article 8 and under our domestic legislation that it could do so. Put another way, he rejected the notion that the "minimum line" in such a case would be a caravan pitch.

  44. As to Article 8, Newman J, at paragraphs 13 and 15 of his judgment, drew on the ruling of the European Court in Chapman, in particular at paragraphs 96 and 98 of its judgment, that, although Article 8 imposes a positive obligation on contracting states to facilitate the gypsy way of life, it does not oblige them to make available to their gypsy communities an adequate number of suitably equipped sites. As to our domestic legislation, he noted the effect of the Criminal Justice and Public Order Act 1994 in: 1) its repeal of the duty formerly imposed on local authorities to provide caravan sites by Section 6 of the Caravan Sites Act 1968 to make sufficient site provision to meet the needs of gypsies in their areas, leaving it simply with the power to do so conferred by section 24 of the Caravan Sites and Control of Development Act 1960 ; and 2) its imposition in cases of homelessness resulting from insufficient provision of a duty to provide them with suitable alternative accommodation. In paragraph 15 of his judgment, he distilled the practical outcome of those two conclusions by reference to the following words of the European Court in paragraph 96 of its judgment in Chapman in explanation of its ruling that Article 8 imposes a positive obligation on contracting states to facilitate the gypsy way of life:

    .... the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at decisions in particular cases ....

  45. Newman J, in paragraph 20 of his judgment, gave practical application to such "special consideration" in this context by holding that if the respondent council in that case had concluded that:

    the claimant’s cultural commitment to traditional life was so powerful as to present great difficulty in her living in conventional housing, it was not bound by duty to find her a pitch, but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life.

  46. In my view, there is no conflict in the mostly first instance authorities from which I draw three main criteria for "suitability" of an offer by a local housing authority of accommodation to homeless to vulnerable people like gypsies to whom it owes a statutory duty to secure the availability of accommodation:

    1. suitability to a Wednesbury minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family, including the duration of their likely occupation of it;

    2. the absolute nature of the duty which, though coupled with an elastic concept of suitability taking account of financial constraints and limited availability of accommodation, is not so elastic as to permit an offer below the Wednesbury minimum standard (or, as Mr Watkinson put it, outside the margin of appreciation); and

    3. special consideration, in the regulatory provision for and in decision-making in individual cases, for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view, so far as practicable and when considered with all the other circumstances, to facilitating their traditional way of life.

  47. In my view, those criteria are not only supported by a consistent line of authority, but, together, are also a sound combination of principle and practicality. I respectfully endorse, in particular, the reasoning and approach of Newman J in Price with particular reference to the special needs of gypsies. I include in that his reservation in paragraph 15 of his judgment, having regard to paragraph 96 of the judgment in Chapman, of the suggestion in the last two sentences of the former paragraph 11.40 of the Code of Guidance that gypsies or travellers should be considered on the same basis as any other applicant:

    11.40

    Under s 175(2) applicants are homeless if their accommodation is a caravan, houseboat, or other movable structure and they do not have a place where they are entitled, or permitted, to put it and live in it. If a duty to secure accommodation arises in such cases, the housing authority are not required to make equivalent accommodation available (or provide a site or berth for the applicant’s own accommodation), but they should consider whether such options are reasonably available, particularly where this would provide the most suitable solution to the applicant’s accommodation needs. These circumstances will be particularly relevant in the case of gypsies and travellers, whose applications must be considered on the same basis as all other applicants. If no pitch or berth is available to enable them to resume occupation of their moveable home, it is open to the housing authority to discharge its homeless obligations by arranging for some other form of suitable accommodation to be made available.

    [my emphasis]

  48. Clearly, in the light of the judgment in Chapman, "special consideration" given to the genuine needs of gypsies requires more effort on the part of a local housing authority than that suggested by the emphasised sentences in that paragraph. Newman J said, in paragraph 19 of his judgment in Price:

    In order to meet the requirement to accord respect something more than ‘taking account’ of an applicant’s gypsy culture is required. As the court in Chapman stated, respect includes the positive obligation to act so as to facilitate the gypsy way of life, without being under a duty to guarantee it to an applicant in any particular case.

  49. It requires the authority carefully to examine a gypsy’s claim for such special consideration and, if satisfied that it is genuine, whether in all the circumstances of the case, it should attempt to meet it, and, if so, how. Those circumstances should, of course, include the likely duration of occupation in respect of which an offer is to be made. However, if despite such examination and, where appropriate, a genuine consideration of ways and means of meeting the gypsy’s claim, an authority fails to provide a caravan site or pitch, it would only amount to a breach of its statutory duty or violate Article 8 if it produced an offer falling below the Wednesbury minimum line. It follows that where land is not available, or cannot readily be made available, on which a gypsy applicant can station his or her caravan, it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind, providing that it satisfies the Wednesbury minimum line of suitability. As Collins J indicated in the passage from his judgment in ex p Begum that I have cited at paragraph 34 above, that line itself may vary according to the length of the expected likely stay in the accommodation offered.

  50. The question, therefore, is whether the Council and, in the light of the decision of the House of Lords in South Bucks District Council v Porter [2003] 2 WLR 1547), and of this Court in Davis v Tonbridge & Malling Borough Council [unreported 26 February 2004], Judge Farnworth also, properly took into account and weighed all the relevant considerations in deciding that the bed and breakfast accommodation offered was "suitable" to the needs of Mrs Codona and her family.

  51. Newman J, in Price, helpfully set out, by reference to Burton J’s judgment in Clarke, relevant considerations in favour of a gypsy’s refusal of an offer of conventional bricks and mortar accommodation because of a claimed aversion to it. They are:

    1. whether the applicant and, if relevant, his or her family lived in a caravan;

    2. whether they were Romany or subscribed to a gypsy culture (subject to my reservations at paragraph 14 of this judgment, but immaterial on the facts of this case);

    3. whether they were itinerant or nomadic for a substantial part of the year;

    4. whether itinerancy was linked to their livelihood (subject to reservations I have expressed in Wrexham Borough Council v Berry & Berry 2003 ..., but immaterial on the issue taken in this case); and

    5. whether they subscribed to the relevant features of the gypsy life in question, such as an aversion to conventional housing.

  52. The only issues on the appeal relate to the fifth consideration. It is clear from the Council’s internal reviewing officer’s decision letter of 8th May 2003 that he had regard to, did "not under-estimate" and sympathised with "the differences (sic)" Mrs Codona would face in moving out of a caravan into conventional housing, but nevertheless found that it was outweighed by the Council’s lack of ability to provide her with a caravan site in its area.

  53. Judge Farnworth, at paragraph 33 of his judgment, rightly adopted the approach of Newman J in Price, by considering whether the Council, in the form of that decision letter, had given "special consideration" to Mrs Codona as a gypsy, and found that it had. He also rightly identified the critical question for him as whether the form that that consideration took was "lawful or adequate". He approached his answer by close examination of the judgments of Newman J in Price and Carnwath LJ in Kayes & Traylen, and gave it in paragraph 40 of his judgment:

    .... it seems to me that in the circumstances of this case the only way the local authority could proceed in discharging their duty to secure suitable accommodation was the way it has. To impose on them a duty faced with an application under Part 7 of the Housing Act of the present nature – and it has to be borne in mind that these are applications which are of necessity marked by a degree of urgency – in those circumstances to impose on the Housing Authority a duty to produce a pitch or berth for six or seven caravans is not supported by statute or case law, whether in this country or in Europe. It is wholly impractical to impose on the Council an impossible solution and, of course, to impose an impossible solution is an order that would be unenforceable for uncertainty.

  54. This short paragraph provokes three questions for this Court:

    1. whether the Judge, in the way in which he expressed it, correctly identified the principles of law governing his decision on the facts;

    2. if so, whether he correctly applied those principles to the facts of the case; and

    3. whether, on the human rights element of his decision, he applied his own judgment; see Porter and Tonbridge & Malling BC.

  55. Looking at paragraph 40 on its own, it has more of the feel of Carnwath LJ’s somewhat readier resort in Hayes & Traylen to impracticability than to Newman J’ expression in Price of a positive obligation to act so far as possible to facilitate the gypsy way of life. However, the Judge went on to deal with the Article 8 point, put to him as a separate or supplemental ground of complaint fortifying Mrs Codona’s claim, in much the same way as Mr Watkinson seeks to argue it here as a proposed fourth ground of appeal. It is, of course, all part of the same question, lawful application of a proper definition of suitability to the circumstances of the case, including Mrs Codona’s aversion to conventional housing and the fact the offer was for short-stay bed and breakfast accommodation.

  56. The Judge was clearly alive to the combined effect of the absolute nature of the Council’s duty, fortified by the Article 8 effect, when put against the Council’s argument that it could not as a matter of practical possibility meet the wishes of Mrs Codona and her family for a pitch to house their six or seven caravans at relatively short notice. This clearly emerges in his rejection of Mr Watkinson’s complaint that neither the Council’s agent, the Aragon Housing Association, in its original decision letter of 4th March 2003, nor the Council’s independent review officer in his decision letter of 8th May 2003, had referred to human rights considerations and, therefore, seemingly had taken no account of them. He said, at paragraphs 41-43:

    41.

    I do not consider that failure to refer expressly to consideration of Article 8 and/or 14 necessarily means the decision is flawed. The important issue, whether reference is made or not, is did the local authority in fact proceed in a way that was compatible with Human Rights legislation.

    43.

    Article 8 deals with the right to respect for private and family life and Article 14 deals with prohibition of discrimination. In this case, I am satisfied that the local authority has proceeded throughout in a manner that has given full recognition of the appellant’s status and with respect to her private and family life and her home and correspondence. That, I have to say and observe, is not just within the homelessness application but in the wider context of the planning and injunction proceedings to which I have already made reference. The original decision letter is very clear and very clearly acknowledges the appellant’s situation ...,

  57. The Judge, after rehearsing the material parts of the 4th March 2003 decision letter (see paragraph 17 above), went on, in paragraph 44 to say that it and the review decision letter of 8th May 2003 (see paragraph 19 above) clearly recognised the special situation of Mrs Codona and her extended family. And he also referred to a witness statement of the independent reviewing officer which had been put before him by agreement between the parties, the material parts of which read:

    5.

    .... I also had regard to the cultural aversion to bricks and mortar accommodation mentioned in the witness statement of the claimant’s solicitor, and is apparent from Aragon’s file.

    6.

    I also made verbal enquiries of colleagues within the Council’s Planning Department to check whether the Council knew of or had available any land, with the benefit of the appropriate planning permission, on which the Claimant and her family could locate their caravans. The only appropriate caravan site managed or owned by the Council is that at Potton some 5 miles from the Claimant’s present location. The site at Potton also falls under my direct management through which I was at all times aware that no vacancies existed for plots which could be offered to the claimant. The district of Mid Beds does contain two other privately owned and operated Gypsy and Traveller sites known as Cartwheel and Talamanca. At the time of considering this review I was advised by colleagues in the Council’s Planning Department that Cartwheel is a privately run site, only accepting members of one family and that throughout the period of the original eviction Talamanca was not considered acceptable to the claimants family owing to cultural differences with the existing residents and the perceived violence which occurred on those sites. The Council owns no other land on which the Claimant and her family could lawfully have stationed their caravans.

    7.

    I was satisfied that the other aspects of the Aragon decision were correct. I also determined that Aragon’s indication that all that could be provided by way of urgent accommodation was bed and breakfast accommodation was an offer of accommodation which was ‘suitable’ in the circumstances. The circumstances being that neither the Council nor Aragon had available to it any land with planning permission onto which the Claimant and her extended family could lawfully re-locate themselves.

  58. From all of this I conclude that the Council and the Judge in the way they respectively approached the effect of Mrs Codona’s and her extended family’s aversion to conventional bricks and mortar accommodation, identified the applicable domestic law, as I have summarised it, and properly, and compatibly with human rights principles, applied it to the facts of the case. It is plain too that the Judge did not simply consider the Article 8 balance by asking himself whether the Council’s decision was, on the facts, one that it was entitled to make. As required by the decisions of the House of Lords in Porter and by this Court in Tonbridge & Malling BC, he formed his own view on the matter.

  59. Put at its simplest, this was a case in which the Council was required as a matter of relative urgency to find accommodation for an extended family occupying some six or seven caravans, who were insisting, because of their aversion to conventional housing, on being provided an alternative site for all of their caravans on which they could continue to live together. Despite careful enquiries by the Council it could find no such site. Nor could it provide at short notice long-term conventional bricks and mortar housing for the extended family. It was driven, therefore, as a short-term measure, to offer short-term accommodation of a bed and breakfast nature. In doing so, it was clearly acting as a matter of last resort and with the clear understanding, as required by paragraphs 12.5 -12.6 of the Code of Conduct, that the duration of their stay in such accommodation was to be kept as short as possible.

  60. In my view, depending on the quality of bed and breakfast accommodation offered and, on the reasonable assumption that the Council will see to it that their stay there will only be for a short time, the Council has, so far, discharged its statutory duty to secure accommodation for the Codona family, and has done so without violation of Articles 8 and/or 14 ECHR. I say "so far" because the bed and breakfast accommodation offered could become unsuitable as a matter of domestic law and/or in violation of Article 8 if it goes on too long before suitable long-term accommodation in the form of conventional housing or, if it can be found, a caravan site can be provided.

  61. It follows that I would dismiss the appeal on the main issue contained in the first three grounds of appeal, and I would refuse permission to appeal on the fourth (proposed) ground as adding nothing to the first three. I would also refuse permission on the fifth ground, as raising no arguable material issue, since, as the Judge observed, given the urgency of the requirement for accommodation and the lack of available options, either as to a caravan site or long-term housing in which the Codona family could be accommodated together or near each other, it is unreal to suggest that the only available short-term option, bed and breakfast accommodation, was unsuitable because of the uncertainty of how long Mrs Codona and her family would have to remain in it.

    Lord Justice Thomas

  62. I agree.

    Mr Justice Holman

  63. I also agree.


Representations

Mr David Watkinson (instructed by The Community Law Partnership) for the Appellant.

Mr Joseph Harper QC and Mr Edmund Robb (instructed by Mills & Reeve) for the Respondent.


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