McDonagh, R (on the application of) v London Borough of Hackney

MR JUSTICE KENNETH PARKER: This is an application for judicial review brought by Mrs Anne McDonagh, who challenges the policy of the defendant, the London Borough of Hackney ("Hackney") in respect of the allocation of pitches on sites authorised and designated for use by the travelling community.

Mrs McDonagh is an Irish traveller and she travels with her two youngest children, Shirley (aged 18) and Donna (aged 15). She is now aged 56 and she suffers from high blood pressure, asthma, arthritis and heart problems. Because of her ill-health and because of the difficulty of staying in an authorised area, she has for a long time been seeking an authorised pitch in the Hackney area.

She shows in her witness statement how she has had strong links with Hackney since 1982. She has, however, still not secured a pitch on an authorised site in Hackney, and she feels (which is understandable) a sense of grievance about her lack of success.

Initially this claim had two strands: a challenge to a decision taken by Hackney under section 77 of the Criminal Justice and Public Order Act 1994 on the grounds that Hackney wrongly fettered its discretion in taking that decision; and did not consider other options that might have been open to it. Cranston J, after an oral hearing, refused permission to pursue that ground. Mr Timothy Jones, who appeared on behalf of the claimant and presented his case forcefully, wisely did not seek to pursue that aspect. For the avoidance of doubt, he would have faced, in my judgment, insurmountable obstacles if he had sought to do so.

This is set out in a document of 2008 entitled "Policy for letting pitches on Hackney traveller sites". It states:

There is a witness statement in these proceedings from Mazhar Khamkar, who is the Hackney Homes Traveller Site Manager employed by the Arm's Length Management Organisation, which has responsibility for the conduct of this part of Hackney's public administration. He has been employed as the Traveller Site Manager since October 1992. He has in fact known Mrs McDonagh for approximately 18 years.

In December 1994 Mrs McDonagh and three of her children were granted permission by the Council to stay at her mother's address, 14 Waterden Crescent, which was a permanent travellers' site. At the time her mother, who was living at 14 Waterden Crescent, had two grown daughters and two sons living with her.

On 18 December 1995 Mrs McDonagh put her name on the traveller site waiting list. At that time the waiting list operated on a different system, namely a points system with points awarded according to various criteria. When a pitch became vacant on a traveller site, the site management would write to everyone on the waiting list, asking for any further information to be considered, before allocating a vacant pitch based on the number of points given.

Mrs McDonagh's name remained on the list until 2003. At that time, states Mr Khamkar, there was no forwarding address given by Mrs McDonagh.

In 2004 the Council changed its letting policy for traveller sites. The site management wrote to everyone on the old waiting list, and once they replied, their details were added to a new waiting list with the date of their original application. Mrs McDonagh did not provide a forwarding address or c/o (care of) address, and site management were informed by relatives that they did not have an address for her. Because of her failure to renew her application, her name was taken off the waiting list.

The process of changing the letting policy took more than a year. There was extensive consultation, including with travellers living on permanent sites, unauthorised encampments and travellers living in houses. In any event, in 2009 Mr Khamkar and the Hackney Homes Travellers' Officer visited the unauthorised site at Mabley Green and met Mrs McDonagh and her husband, whom she travelled with. At that time Mrs McDonagh asked if she was on the waiting list, and she was told that as she did not reapply to go on the waiting list in 2004, her name had been taken off. According to the statement of Mr Khamkar, the Travellers' Officer, Mrs Angie Emmerson, explained to Mrs McDonagh about the new letting policy and also gave her the literature regarding the policy. Apparently an appointment had been made for Mrs McDonagh to visit the office to put her name on the waiting list, and she was told about the documentation needed to show that she had a c/o address in Hackney.

It is said that the officers would have spoken to Mrs McDonagh, asking her to attend the office to get her name on the waiting list, and after several attempts, on 7 April 2009, Mrs McDonagh did visit the office to put her name down. She gave No 3 Abbey Close as her c/o address, but apparently there was no documentation to substantiate this at the time. As there was not sufficient documentation, a letter was written to Mrs McDonagh on 28 May 2009 in the following terms:

The wording of the letter can perhaps be criticised as somewhat inapposite, in that it suggested that Mrs McDonagh simply failed to come within the criteria, whereas it is accepted that the failure, if any, was to provide the documentation necessary to show that the criteria had been satisfied, and it has been suggested, and I think with some force, that had the position been set out in terms in that way, some confusion and delay might have been avoided.

In any event, on 10 June 2009 - this of course is some time considerably later - a fax was received from Geraldine Lindsay, working for the London Gypsy and Traveller Unit dated 7 April 2009, which did provide evidence of Mrs McDonagh's address. It appears from the background circumstances that the documentation for submission had probably been prepared at an earlier point, but it appears, at least on the face of the documents, that the material was not submitted until 10 June 2009. It is not possible to say that with absolute confidence, because it may be that there was an earlier submission that has somewhere gone astray.

It is said by Mr Khamkar that on 17 June he wrote to Mrs McDonagh informing her that her application was successful and that she would have to renew it every year in January. Mr Khamkar produces as an exhibit to his witness statement a copy of that letter, so it does appear from the evidence that Hackney did intend to send a letter of that nature. Nonetheless, Mrs McDonagh strongly contests the receipt of that letter, and raises an issue as to whether in fact the letter was duly dispatched at the time. I have no real reason to doubt that a letter of that kind was dispatched, but again something may have gone wrong in relation to the receipt of the letter and its communication to Mrs McDonagh. However, this is not an issue for the purposes of these proceedings that I need to resolve.

In the event, Mrs McDonagh did not renew her application by 31 January 2010. Letters were sent to her at her c/o address asking her to renew the application. On 7 April 2010 Geraldine Lindsay from the London Gypsy and Traveller Unit sent Mr Khamkar an e-mail stating that she had spoken to Geraldine McDonagh from 3 Abbey Close. Geraldine is Mrs McDonagh's daughter-in-law, and that was the address used as the c/o address for present purposes.

Her name, in default of her failure to renew, was deleted from the waiting list on 30 April 2010. However, Mr Khamkar says that in March 2011 he visited the camp and informed Mrs McDonagh that her name had been taken off the waiting list and that she had to register again. On 11 March 2011 he helped Mrs McDonagh to complete her application form, which resulted in her being placed back on the waiting list. At the same time he reminded her that she had to renew her application every year by 31 January. If she failed to renew her application, Hackney would write to her by February to remind her that she needed to renew or her name would be taken off the waiting list.

Mr Jones referred me to a number of documents with a view to showing, first, that travellers were a particularly vulnerable part of the community, who suffered considerable disadvantages in terms of, for example, health, education and welfare; and secondly, that local authorities generally, and Hackney in particular, had over a very substantial period failed to provide anything approaching an appropriate number of authorised and designated sites and pitches for travellers, contrary to what was expected of them by relevant legislation and guidance. He relied, for example, on relevant passages from Hackney's own document, entitled "A strategy for gypsies and travellers", and to Government guidance, in particular DoE Circular 1/94 and ODPM Circular 1/06.

The special position of travellers is accepted by the defendant, and the alleged failure referred to, at least for the purposes of the present claim, is not sought to be controverted. In essence, submitted Mr Jones, given that special vulnerability and public authority failure, Hackney's policy was irrational because it unfairly prejudiced travellers who were in the position of Mrs McDonagh, namely who had been driven from Hackney and who had been unable, despite demonstrable connection with Hackney, to secure and retain a place on the waiting list, and to receive treatment commensurate with the merits of their individual circumstances. The facts, he broadly put forward, spoke for themselves.

Mr Jones accepted, in my view correctly, that Hackney was entitled to have a requirement that to be admitted to the relevant waiting list an applicant needed a demonstrable connection with Hackney, and that, in principle, a resident's qualification was not unreasonable. However, he contended that the specific criteria to show that connection were arbitrary, and in certain cases unduly burdensome, especially for those who might not be able to read and write - a disadvantage well-known to exist in the travelling community.

It was necessary for Mrs McDonagh to produce or arrange for the production of specific documentation to register initially under the policy adopted in 2004, assuming that she knew at all of the change in policy which she in her statement said she did not; and then to take active steps to secure her continuing registration on the waiting list by again producing or arranging the production of specific documentation.

In my judgment, it is important not to lose sight of the legal issue in this claim. The issue is not whether a superior set of criteria could be devised or whether the administrative processes could be improved. In most instances where a scarce resource is to be rationed - here authorised pitches for travellers - competing criteria and procedures are typically open, and the eventual policy selected is likely to carry advantages and disadvantages depending on the individual circumstances of those affected. The process of consultation, which was of course followed here, frequently reveals where the acceptable consensus lies and may be a powerful influence on the final choice.

The general approach of the court in cases of this kind is well illustrated by the R(Ahmad) v Newham London Borough Council [2009] UKHL 14; [2009] HLR 31. In that case the House of Lords rejected a rationality challenge to a housing allocation scheme maintained by the defendant authority pursuant to section 167 of the Housing Act 1996. That section identified a number of categories of applicants to which a reasonable preference was to be given. The defendant scheme, which gave potentially decisive weight to how long an applicant had been on the waiting list, was found to be unlawful at first instance and in the Court of Appeal.

In allowing the defendant's appeal, members of the appellate committee referred to the difficulties inherent in a challenge to such an allocation scheme:

The demands of effective administration are also relevant, see the observation of Lord Scott in Ahmad at paragraphs 4-6 and Lord Neuberger at paragraph 51.

I accept that the specific context in Ahmad was different. Nonetheless, the case at its core involved a challenge to a policy that was designed to ration a scarce resource, in which there would be competing arrangements and potential winners and losers whatever policy was chosen, a situation commonly called "polycentric" in the academic literature following Professor Fuller's first use of that expression. The general approach indicated in the case is therefore appropriate in the present context.

For my part, I discern no irrationality in the starting point of Hackney's policy that requires a residential connection with the borough, nor in the requirement that residence must be contemporary, in the sense that the traveller can show either continuing physical presence, or that the traveller has retained a c/o address in the borough. It must make sense to afford priority to those who are in fact living in Hackney, or who have lived there and have retained a firm point of contact with Hackney.

I should make clear that these observations are not intended to be prescriptive, and I fully recognise that other arrangements could be made, other criteria followed, other than those in the present policy, and that that can be done quite lawfully.

Nor, in my view, is it irrational to require that registration on the list must be renewed. Given the small number of pitches and the intense competition for the few pitches that do become available, it is essential that those on the list have a continuing interest and continue to meet the criteria. Without an effective sift of that nature, the list could well become unmanageable and would retain on it those who either had no serious interest in securing a pitch in Hackney, or who had far inferior claims in terms of connection with Hackney. A policy that neglected that requirement might indeed be vulnerable to a challenge on the grounds of irrationality.

I fully recognise, as stressed by Mr Green, that some travellers might well find it burdensome to re-register each year and to keep abreast of any changes in relevant policy, especially those relating to allocation criteria. If a traveller is not able to read and write, as is the case with the claimant, there may be special difficulties in effectively communicating from both sides. However, I am not persuaded that such difficulties, which can potentially lead to unfortunate consequences, vitiate the policy as a whole. The traveller may take appropriate steps to ensure, so far as is practicable, that the person at the c/o address is responsible and is aware of the relevant policy, and is alert to the need for re-registration. The traveller may put in place arrangements by which such person either herself provides the necessary documentation, or takes steps to remind the traveller of what is needed so that the latter can herself take the necessary steps. From the evidence in the case, it is clear that the traveller can attend the Council offices to re-register in person, or to get someone to do that for her, provided the documentation is provided - an extra facility that gives some degree of flexibility to the administrative arrangements.

In this case Mrs McDonagh had a c/o address with her daughter-in-law, and I have no reason to doubt that her daughter-in-law intended to give Mrs McDonagh such assistance as was required to secure continuing registration on the waiting list. However, something did go wrong, even assuming that best endeavours were exercised. However, even if other criteria were adopted, administrative procedures would be necessary, and these procedures inevitably carry cost - in some instances of unjustifiable amounts - and are equally prone to mistake, error and worse.

Notwithstanding the points urged by Mr Jones about vulnerability and the general circumstances in which travellers are likely to find themselves, I am satisfied that the administrative procedures that have been established to give effect to the policy are reasonable, fair and not unduly burdensome. They are procedures that travellers, notwithstanding their particular circumstances, can reasonably be expected to follow.

For those reasons, I hold that the policy is not an irrational one and is lawful in law. Therefore, I dismiss this claim for judicial review.

MR GREEN: My Lord, in that event I seek the typical order against a publicly funded party: that the claimant pay the defendant's costs, to be assessed pursuant to section 11 of the Access to Justice Act 1999.

MR JUSTICE KENNETH PARKER: I do not think you can resist that.

MR JONES: I cannot argue against that. The claimant has been legally aided throughout with a nil contribution.

MR JUSTICE KENNETH PARKER: Thank you very much, both of you, for your very helpful and succinct submissions. I am most grateful.

MR JONES: My Lord, I apologise for intervening, I have to ask for detailed assessment of costs, I apologise.

MR JUSTICE KENNETH PARKER: Certainly.