Maughan, R (on the application of) v Leicester City Council

MR JUSTICE RICHARDS: The Claimant is a traveller. He has a wife and four children aged between five and 15. By these proceedings he challenges the lawfulness of a decision by the defendant, the Leicester City Council, to obtain a possession order against him and his family and the lawfulness of a decision made by the Council in the discharge of its duties towards him under the homelessness provisions of the Housing Act 1996.

There were originally two Claimants, but the second Claimant and her family have vacated the site in question. I am told that in those circumstances the matter has been disposed of, or will be disposed of, by consent so far as she is concerned. She drops out of the picture, save as part of the history.

In early October 2003 the Claimant and his family, together with other travellers, moved unlawfully onto the Council's land at Aylestone Playing Fields, Braunstone Lane East. The site is described by the Claimant as a disused car park, but there is a factual dispute about whether it is truly disused or whether the reason it has not been used during the period material to these proceedings is its occupation by travellers.

The Council has an enforcement policy for dealing with unauthorised encampments. It was drawn up in 1999 to give effect to recommendations in a Good Practice Guide, issued jointly by the Home Office and the Department for the Environment and Transport and the Regions. Relevant provisions of the Council's policies are these:

The Council also has a Code of Tolerance which sets out conditions which must be followed by travellers where the Council has decided to tolerate an encampment.

The history of the Council's consideration of the encampment at the Aylestone Playing Field site is set out in two witness statements of Mr Adrian Russell, Service Director for the Council's Environment Regeneration and Development Department.

When the matter was first considered by the Gypsy and Traveller Assessment Panel on 16th October 2003 it was reported that there had been some complaints from residents, mainly about the presence of the travellers on the land rather than any specific problems concerning noise or nuisance. The Gypsy Liaison Officer passed on apologies on behalf of the Claimant, saying that he had concerns about potential dumping on a grassed area near the car park. She also reported that the Claimant's children had serious health problems. One of the children attended a hospital school, the other also attended school.

The decision made was that the needs of the travellers outweighed the nuisance caused and that the encampment should be tolerated for the period of a month. Mr Russell states that at the meeting he asked the Liaison Officer to obtain reports from the Traveller Education Service and from the Health Trust.

There was a reconsideration on 30th October in the light of an increase in the nuisance caused. In particular, there were reports about the dumping of two cars in the hedgerow and about scrap metal lying around. There had been an increase in the number of caravans on the site.

The Claimant attended the meeting. He expressed his concern for being unable to stop others dumping on the site. He advised that one of his children had serious health problems and was attending at the hospital school. It was also reported that one of the travellers had given birth recently and that a mid-wife was visiting the site daily. In all the circumstances, it was decided to tolerate the encampment for a further month, though the travellers were advised to keep the site tidy.

On 12th November there was a further reconsideration at short notice because of a report that 900 tyres had been dumped at the encampment. There was no evidence that the occupiers of the site had dumped them. It was decided that the encampment should be tolerated for a further two weeks, subject to the removal of the tyres. It appears that the tyres were subsequently removed.

On 17th December yet another month of toleration was decided on, despite reports of cable burning within the encampment and increased levels of complaint about the noise caused by generators on the site. The assessment made was that overall there was not a major problem to the public. It was just a matter of visual amenity. Account was again taken of the needs of the travellers, including on this occasion the fact that it was the Christmas period coming up.

On 14th January 2004, however, the decision was taken that the encampment should be tolerated no longer. The relevant notes indicate that the position was broadly the same as before. There was evidence of the burning of car parts around the edge of the site. The occupants denied burning cable. A number of complaints had been received. There was, however, no report of serious criminal incidents. The number of caravans on site had not increased but, if anything, had decreased. Overall, there was not considered to be any real change. Reference was made to the presence of young babies on site and to the fact that children were still having hospital treatment.

The way in which the matter was considered is described as follows in paragraph 28 to 31 of Mr Russell's first witness statement:

In paragraph 14 of his witness statement Mr Russell observes that no reports have been received from the local Health Trust or the Traveller Education Service, but the Council did its utmost to avail itself of the health, education, social and housing needs of the travellers through travellers attending at the meetings and information given to various officers.

On or about 30th January, just before possession proceedings were issued, the second Claimant and her family arrived on the site, though her presence there was not brought to the Council's attention until after proceedings were issued.

The proceedings were issued on 4th February. On 10th February the Court made a possession order in favour of the Council. The proceedings had been brought against the Claimant and persons unknown, but the second Claimant was added as a defendant at the request of her solicitors. On the following day, 11th February, the Claimants issued the present proceedings for judicial review. An interim injunction was refused by Mitting J on 12th February. On 13th February, before proceeding with eviction, the Council considered the position of the second Claimant. I need not deal with the consideration given to her. It suffices to note that the decision was taken to proceed with eviction. It appears that eviction of all the travellers was scheduled for 16th February. On the previous Friday, 13th, however Morrison J granted an interim injunction to prevent the eviction of the Claimants or their families, and that order was renewed by Collins J on 18th February.

In his second witness statement Mr Russell explains that because other travellers had moved onto the site it was decided to proceed with a partial eviction on 15th March so as to remove travellers other than the Claimants and their families, who were, of course, protected by the interim injunction.

Further consideration was then given to the position of the Claimants. The present Claimant, together with the husband of the second Claimant and a solicitor, attended a meeting at the Council's offices on 25th March. During the meeting the Claimant provided various bits of medical information about members of his family, including various medical reports.

A further Panel meeting was then convened on 28th April. At that meeting the earlier decision was confirmed, following consideration of the up-to-date information.

Mr Russell gives the reasons as follows in paragraphs 11 to 13 of his second witness statement:

It is since that time, apparently in early May, that the second Claimant has left the site, with the result that the only persons remaining in occupation of it are the present Claimant and his family.

In his witness statement the Claimant provides details of his personal circumstances, including the health problems of the family and the education of the children which he says would be disrupted by eviction from the site. He comments, in addition, on the various complaints about the encampment; problems which he largely attributes to other travellers. He says that there is very little generator noise and that the site is now neat and tidy.

That is a sufficient outline of the facts concerning the decision to seek the possession order and to confirm that decision.

I must now backtrack in order to deal with facts relevant to the Housing Act part of the case. The Claimant made a homelessness application on 6th February 2004. On 9th February the Council wrote, accepting that he was homeless and in priority need by virtue of having dependent children, but expressed the view that he might be intentionally homeless. It was accepted that in the circumstances, as the Council's investigation continued, the Council had a duty to provide interim accommodation to him and his family under section 188 of the Housing Act 1996.

The letter continued:

The accommodation offered was unacceptable to the Claimant. In his witness statement he repeats what he told the Council about having a cultural aversion to bricks and mortar accommodation.

The judicial review claim as originally formulated alleged a continuing failure to resolve the application for housing. By an amendment, there is now a challenge to the decision of 9th February to fulfil the interim duty by the offer of conventional accommodation. But matters have, in fact, moved forward in that on 26th April the Council notified its final decision under section 184 of the 1996 Act that the Claimant was intentionally homeless. That further decision is not the subject of challenge in these proceedings. The Claimant has correctly proceeded in accordance with the statutory procedure of requesting a review of the decision.

There are two main issues. First, whether the Council erred in law in its decisions of 14th January and 28th April 2004 concerning the eviction of the Claimant and his family from the site. The second is whether it erred in law by its decision of 9th February 2004 to fulfil its interim housing duty by offering the Claimant conventional accommodation.

On behalf of the Claimant, Mr Watkinson has referred to various legal authorities and to extra statutory guidance, including the Good Practice Guide that I have already mentioned, concerning the proper approach to decision-making when faced with the question whether to seek the eviction of travellers from sites where they have established unlawful encampments. The materials referred to underline the importance of making meaningful enquiries so that the decision-maker is properly informed of the needs and of the situation of those on the land with a view to making a balanced decision. Matters to be taken into account include what are described as considerations of common humanity, in particular the social and welfare needs of the occupiers. Those principles are common ground. It is also common ground that there is no greater obligation than that. It is not suggested, for example, that an authority can decide to recover possession of a site only if satisfied that those unlawfully encamped on it have an alternative site available to them, or that there are no welfare issues whatsoever.

There is, moreover, in practice no dispute that the correct approach is embodied in the Council's own enforcement policy, the relevant passages of which I have already set out. As it seems to me, therefore, the question in this case becomes one of whether on the facts the Council has applied its own enforcement policy correctly.

Mr Watkinson recognises that he must show that the Council acted unlawfully both in relation to the decision of 14th January and in relation to that of 28th April. The 14th January decision is the actual subject of challenge, but even if that decision was found to be unlawful, he recognises that the Court would refuse relief if the further decision of 28th April confirming the earlier decision was itself a lawful decision.

In relation to the decision of 14th January the complaint boils down to the contention that before the decision was made the Council should have chased up the reports requested at the meeting of 16th October from the Traveller Education Service and the Health Trust and it is said that the failure to do so deprived the Council of potentially relevant information as to the health and education needs of the family.

The submissions are developed as follows. It is said that the approach described in Mr Russell's witness statement relies on issues concerning health and education being brought to the attention of the decision-maker rather than the decision-maker making appropriate enquiries for itself. Having made a request for reports on 16th October the Council should have enquired what had happened rather than proceeding without them. It was especially incumbent on the Council to make further enquiries because the health issues had been described on two occasions as serious. There was no apparent urgency to reach a decision that could have justified proceeding without seeking to obtain that further material.

It is said that if enquiries had been made, relevant information would have been forthcoming, as is apparent from information subsequently provided. That includes information that one of the sons, Jonathan, needed care and attention because of his kidney problems, and that although discharged from hospital he was not at that time attending mainstream education. A home tutor had been arranged for him, who attended the site on a regular basis.

In relation to two other children, Chantelle and Shane, they were attending a school approximately a mile away from the present site, and there was documentary support from the school as to the efforts made by the family to ensure continuous education for the children. The Headteacher had expressed the view that the Claimant was right to try to keep the children in one school where they felt safe and secure, rather than moving them.

In a report from the family's GP, which post-dated the decision of 9th February but was supplied together with the other material I have referred to for the purposes of the later decision, more detailed reference was made to Jonathan's position. It was said that he was suffering from an ongoing problem regarding a kidney, that he was still having hospital treatment for the problem. He had also been diagnosed with psychological problems and a referral had been made, though no report had been received.

I will come back to this letter when considering the decision of 28th April, but it is right to mention at this point that the GP expressed the view that to evict the family would cause additional stress and he appeared to support their application for accommodation under the homelessness provisions, though it is to be noted that he had stressed that they should take permanent residence in a house rather than being itinerant. That then, in brief, is the material relied upon on behalf of the Claimant.

For the Council, Mr Manning submits that a proper balancing exercise was carried out. The Council was entitled to take into account the history of complaints concerning the site and the extent of previous toleration when reaching a decision. He accepts that additional reports requested on 16th October were not received, but submits that in the circumstances it was open to the Council to proceed to a decision without them. He points out that the Panel was made aware from the outset of the existence of serious health problems amongst the Claimant's children. The Claimant himself had attended on 30th October and told the Panel that one of his sons had serious health problem and attended a hospital school. When the decision was taken on the 14th January, account was taken of those matters. There was, it is submitted, no obligation to make further enquiries. In support, Mr Manning refers to a passage in R v Hillingdon London Borough Council ex parte McDonagh (1998) 31 HLR 531 at 542 to 543, where it is said that although an authority exercising powers of eviction should have regard to the consequences or those evicted and to the implications of their various statutory responsibilities, they do not have to carry out full investigations under those various other statutes before reaching a decision.

Mr Manning further submits that even if the Council should have obtained the further reports that have had been requested, there is nothing in the material relied on by the Claimant to suggest any change in the essential features of the case as understood by the Council when reaching its decision, and therefore nothing to show that the decision would have been different had such reports been obtained.

It seems to me that the only question can be whether before reaching its decision the Panel ought to have obtained the further information that had been requested at 16th October meeting. On the basis of the material it actually had, I take the view that the Council carried out a fair balancing process and reached a conclusion reasonably open to it. It was entitled to look at the overall history concerning the site and at the extent of toleration, as well as the various other matters referred to by Mr Russell, and to conclude that they outweighed the needs of the Claimant and his family and the other travellers. There was no want of common humanity in the balancing exercise carried out.

On the specific question, however, whether they should have obtained more detailed information about health and education, I have hesitated. I think it highly relevant that after making the original request for more information, the Panel had been addressed by the Claimant himself at the meeting of 30th October. Even then, of course, they did not have the full detail concerning the medical condition of the Claimant's children. Nonetheless, I have concluded that in all the circumstances they had sufficient information on which properly to proceed to a decision. I am satisfied in any event that if the additional information pointed to by Mr Watkinson had been available at the meeting of the Panel on 14th January the decision would have been the same. I do not think that any of the details, including the concerns expressed by the GP about the added pressures that would result from eviction, materially alter the essential picture that was known to the Panel at the time of its decision, or could have affected the ultimate decision.

If I were wrong in relation to the decision of 14th January, I would still refuse relief if I was satisfied that the confirmatory decision of 28th April was lawful.

Mr Watkinson's criticisms of that decision are fourfold. First, he submits that Mr Russell misread the medical evidence and failed to take relevant matters into account, in particular when stating that the medical condition of the members of the Claimant's family had stabilised. Mr Watkinson refers me again to the GP's report in relation to the Claimant himself. That report states that he has a lot of psychological problems, including depression. At the meeting on 25th March the Claimant had also informed the Panel about an operation that he had had on his knee cartilage. He was due to go back to have the stitches removed on 31st March. He was able to move around on crutches but was supposed to keep weight off his leg for two to three weeks. He would subsequently be attending physiotherapy.

In relation to Jonathan, the GP's report referred to the ongoing problem concerning the kidney and to a potential psychological problem. A report from the NHS Trust stated that Jonathan had undergone surgery in 2003 and was currently convalescing. He was unable to attend mainstream school. It appears, however, that by late March he was being phased into mainstream school and by May, as appears from the Claimant's witness statement, he was actually attending mainstream school. Although reference is made also to the medical condition of other members of the family, it is to the position of the Claimant and his son Jonathan that Mr Watkinson makes particular reference in contending that, far from their condition having stabilised, they could be seen to be having ongoing treatment and problems still under investigation.

In relation to that submission, I think it important to note, as Mr Manning submitted, that Mr Russell was saying that the medical conditions had stabilised, not that they had been completely resolved. In my view, that was a perfectly fair description of the position. The Claimant's depression was a long-term condition and there was nothing to show that it was becoming more acute. He was recovering from his cartilage operation the previous month. Jonathan's kidney operation had taken place the previous year. He was still having hospital treatment, but he had recovered enough to be phased back into mainstream school. There was a referral for psychological problems but no more information was available about that. The other members of the family did not have serious health problems. Stabilisation seems to me to be a reasonable summary of the position. There was, in my judgment, no error here.

The second criticism made by Mr Watkinson is that there was a failure by Mr Russell to consider the disruption to the children's education that might result from eviction. It is submitted that what is said in paragraph 13 of Mr Russell's witness statement that "the issues with regard to the children getting to school would always remain and that eviction from this site would not mean an end to the education of the children involved" displays a failure to take that matter into account.

I accept that Mr Russell in that passage does not spell out the considerations given to this possible disruption of the children's education. In my judgment, however, it is plainly implicit in what he says that account was taken of the possibility of such disruption. What he was saying was that there were going to be issues about getting to school, but they were not going to be such as to prevent the children receiving education. That was a reasonable view. In my judgment, again there was no error.

The third point advanced by Mr Watkinson is an alleged failure by the Council to put relevant matters for comment by the Claimant. In his witness statement he makes the point that the site had not been used as a car park for many years and that there were alternative entrances to the park. As to the possibility of other travellers moving onto the site in the future, he says that he had already drawn the Council's attention to ways of dealing with that problem. He had answers to give. The points should have been raised with him.

The simple response to the second of those matters is that the Claimant had indeed already raised the suggestion with the Council but it had been rejected. As to the first matter, the fact is that the Council does not accept that the site has never been used as a car park. I do not think that the Claimant's position gains support from the statement in one of the Minutes from the Panel meetings, that the car park was not then in use. I cannot resolve the conflict between the Claimant and the Council on his issue. For present purposes, the important point is that in my judgment it is not the sort of matter that it was necessary as a matter of procedural fairness to put to the Claimant before reaching a decision.

The final criticism of the decision of 28th April is the absence of reference as part of the reasoning process to the homelessness application. Mr Watkinson submits that the Council ought to have considered, in the context of the decision whether to evict, the question of its duty or power to provide accommodation to the Claimant under the homelessness provisions. It might, for example, have concluded that the only way of providing suitable accommodation under those provisions was by allowing the Claimant and his family to remain on the site. It was therefore relevant to the question whether to proceed to evict. Failure to consider the point rendered the decision unlawful.

I am wholly unpersuaded by that argument. Mr Manning has addressed submissions by reference to R v London Borough of Barnet ex parte Grumbridge (1992) 24 HLR 433, and R v Lewisham London Borough Council ex parte Akinsola (1999) 32 HLR 414 to the effect that there is simply no link between the decision to evict and the powers and duties of the Council under the homelessness legislation: the possible outcome of any application as a homeless person, or any possible decision as to the offer of interim accommodation, is simply irrelevant to the eviction decision. There seems to me to be much force in that line of argument, but I do not need to reach a decision on it because this part of Mr Watkinson's case depends on the success of his challenge to the separate decision of 9th February 2004 under the homelessness legislation. The Council had offered the Claimant and his family hostel accommodation in discharge of its interim housing duty. If that was a lawful offer then there could be no question of the only suitable accommodation being the site where the Claimant and his family were encamped, and there was simply no way in which the homelessness decision could have any effect on the decision to evict, save perhaps to strengthen the case for eviction since suitable accommodation would be available for the Claimant and his family elsewhere. For reasons I shall give in a moment, I take the view that the Council's offer of interim accommodation was lawful. That also disposes of the fourth ground of criticism of the decision on 28th April to confirm the decision to evict.

Accordingly, on the first issue I first reject the challenge to the decision of 14th January 2004 and I make clear that even if I had accepted that that decision was unlawful, I would have refused relief on the basis that the further decision of 28th April 2004, confirming the first decision, was itself a lawful decision in the light of the up-to-date information.

I turn to consider the challenge to the decision of 9th February 2004, whilst noting that its only relevance can be to the point that I have just discussed. It has no independent significance since there has now been a final decision on the homelessness application, which is the subject of review under the Housing Act procedures. So the interim duty to accommodate has come to an end. Whether to offer accommodation pending the review is a matter of discretion for the Council if an application is made, and I am far from convinced, from what I have been told, that there has been such an application to date.

There is no issue there was a duty to provide suitable accommodation on an interim basis pending a final decision on the homelessness application. The decision of 9th February 2004 was to offer hostel accommodation, conventional bricks and mortar accommodation. The submission made on behalf of the Claimant was that that was unlawful.

The first and main ground advanced is that the Council erred in law in rejecting, by reference to the Claimant's previous acceptance of conventional accommodation, his case that he had a cultural aversion to accommodation of that kind.

In R (Price) v Carmarthenshire County Council (2003) EWHC 42 (Admin) Newman J considered the issues arising under the homelessness legislation where a cultural aversion is put forward to bricks and mortar accommodation. The Claimant in that case had been offered conventional accommodation, although she had a strong aversion to it. She succeeded in her application for judicial review of the decision. It is important to note that Newman J rejected a submission that in the case of a traditional traveller an offer of bricks and mortar accommodation is incapable of constituting an offer of suitable accommodation. It was necessary to give special consideration to the fact that the Applicant was a gypsy and to the Applicant's gypsy culture, including any aversion to conventional accommodation.

The reason why the application for judicial review succeeded was that the Council had relied solely on the Claimant having expressed an interest in conventional housing a year previously, in 2001. Newman J held that it was an error of approach to regard the fact that she had evinced a preparedness to give up the gypsy way of life and live in conventional housing in 2001 as a sufficient reason for disregarding it altogether when considering her wishes a year later. A viewpoint formed in 2001 could not be assumed to have continuous validity so as to be a telling consideration a year later.

Mr Watkinson submits that there was a similar error by the Council in the present case. The Council considered the historical position but did not consider the current aversion to conventional accommodation. There had been a lapse of some five months or more since the Claimant had occupied conventional accommodation, but the Council had information before it as to his current feelings on the subject. I reject that submission. It is plain that the Council directed itself correctly by reference to the decision in Price, to which express reference was made in its letter. It took into account the whole history of conventional accommodation which was, in truth, very recent history, as well as the information provided by the Claimant as to his present aversion to such accommodation. It concluded that he did not have such an aversion as to make conventional accommodation unsuitable. It is relevant to note that this was temporary accommodation, pending a final decision on the homelessness application.

In my judgment, there was no error of the kind that arose in Price. There was, indeed, no error at all. The conclusion reached was one that was reasonably open on the evidence.

The second ground of complaint is that the Council failed to enquire into whether there was medical evidence to support the assertion that conventional accommodation had an adverse effect on the Claimant's health. Again, I do not consider there to be any substance in the point. The Council took into account what was said to it both in interview and in a letter before claim about conventional accommodation having a depressive effect on the Claimant. It does not seem to me that it was necessary in the circumstances for the Council to seek further medical evidence before reaching a decision on the offer of interim accommodation. Nor does it seem to me from such additional medical evidence as I have been shown that anything might have been obtained, if further information had been sought, that was capable of making any difference to the decision.

Accordingly, I conclude that the decision of 9th February was a lawful decision.

Having regard to my findings on those two issues, it is unnecessary to consider any question of discretion. For the reasons I have given, the claim must be dismissed.

MR MANNING: My Lord, I am obliged for your Lordship's judgment. I would invite your Lordship to formally dismiss the claim.

MR JUSTICE RICHARDS: Yes, done.

MR MANNING: My Lord, in relation to the injunction granted by Collins J --

MR JUSTICE RICHARDS: Yes. Is that not automatically discharged?

MR MANNING: I think it is.

MR JUSTICE RICHARDS: I discharge the injunction for the avoidance of doubt.

MR MANNING: I am grateful. My Lord, with regard to the question of costs, I understand the Claimant is publicly funded. I am instructed to ask for costs on the usual basis in such cases, subject to assessment of his means to pay.

MR JUSTICE RICHARDS: Even though I deal with these matters now very often, I constantly forget the precise wording of the usual basis, as you put it, but I take it you would like to rely on the Associate to get it right.

MR MANNING: My Lord, I am obliged. My understanding is that it would be subject to a full assessment of his means.

MR JUSTICE RICHARDS: It is a question of postponement of the determination of liability, and so on, but we will get the wording right, if I make an order in those term. Mr Watkinson, what do you say about the costs point?

MR WATKINSON: I cannot make any observation on the costs. I can dig out the formula, but I am quite sure the Associate has it.

MR JUSTICE RICHARDS: No, we can deal with that.

MR WATKINSON: It only remains, then, for me to ask for a detailed assessment and the Claimant's public funding certificate.

MR JUSTICE RICHARDS: I will order the Claimant to pay the costs, subject to the usual public funding proviso, and of course you may have a detailed assessment for Legal Aid purposes.

MR WATKINSON: I am very much obliged.

MR JUSTICE RICHARDS: Thank you very much indeed for your assistance, and you, Mr Manning.

Mr Watkinson, the Associate very prudently raises the potential problems in terms of detailed assessment in particular, arising out of the fact that hitherto you have had two Claimants whose cases have been run together and now you are acting only for one of them.

MR WATKINSON: I did not think that will cause a problem. I am told by those instructing me that the consent order in the Casey part of the claim has been lodged. I have not got it in front of me, but I am quite certain that that provides for a detailed assessment of her claim and I would suppose what will happen is that those will be taxed, assessed rather, together.

MR JUSTICE RICHARDS: Is it not possible for me to deal with the consent order today and to endorse it, or has it now gone into the system and may go to somebody else? Because the eminently sensible approach is for me to bring finality to this matter by approving the consent order in relation to the second Claimant.

MR WATKINSON: Indeed. Then it can all form part of the same order.

MR JUSTICE RICHARDS: Yes. Either it is part of the same order or at least it can go together with the order in relation to the first Claimant. In that case it will all be put in one order.

MR WATKINSON: I am very much obliged.