McDonagh, R (On the Application Of) v Newport City Council

This claim for judicial review is brought with permission that I granted on 8 April 2019. The claimant challenges, first, the lawfulness of the defendant’s revised Gypsy and Traveller Site Allocations Policy, pursuant to which she has been refused eligibility for a pitch on a gypsy and traveller site on the ground that she does not have a demonstrable aversion to living in bricks and mortar accommodation. She challenges, second, the lawfulness of the defendant’s decision that she is ineligible because she did not demonstrate an aversion to living in bricks and mortar accommodation.

The claimant was born on 17 November 1994 and is aged 24 years. She is an Irish traveller. It is common ground that she is within the definition of gypsy and traveller under Section 108 of the Housing (Wales) Act 2014 and that she has a protected characteristic, namely race, for the purposes of the Equality Act 2010. The claimant is illiterate. In addition, she has significant mental health issues, for which she is prescribed medication. The defendant council accepts that she is a vulnerable person for the purposes of the “priority need test” under the 2014 Act. The defendant also accepts that it has owed to the claimant the full accommodation duty under the 2014 Act (I shall explain that later), though it contends that it has discharged that duty by making an offer of suitable accommodation, which the claimant has refused. That matter is subject to other proceedings.

The claimant was brought up in bricks and mortar accommodation. In 2012, at the age of 17, she left her parents’ home and went to live in a caravan. Since then she has permanently lived in a caravan on the roadside or on unauthorised encampments in the Newport area.

On 7 September 2012, again while she was aged 17, the claimant made a housing application to the defendant. In that application, she confirmed that she wished to consider various kinds of bricks and mortar accommodation, including “ground floor flat”, “upper floor bedsit” and “upper floor flat”, as well as “caravan/mobile home” and (so far as I can read the document: there is a holepunch at the critical point on the copy in the bundle) “gypsy and traveller site”. However, the claimant continued to reside in a caravan.

In late 2016 or early 2017, the claimant made an application for a pitch on the defendant’s gypsy and traveller site. That application was refused in January 2017. The refusal recited some material facts, and one of the two grounds of refusal was:

The appeal was refused. The defendant’s reason for refusing the appeal on this particular ground was stated as follows in a letter of 27 February 2017:

On 12 April 2017, the claimant’s solicitors wrote again to the defendant. The letter set out some of the history and continued:

On 20 July 2017, the claimant made a formal homeless application for housing. The claimant was homeless by reason of section 55(2)(b) of the 2014 Act, in that she had accommodation but ‘it consist[ed] of a moveable structure, vehicle or vessel designed or adapted for human habitation and there [was] no place where [she was] entitled or permitted both to place it and to reside in it.’ Under section 62, the defendant was under a duty to assess the claimant, and under section 63 it was under a duty to notify her of the outcome of the assessment. Section 73(1) provides:

I pick up the chronology again. On 22 August 2017, the claimant’s solicitor wrote a letter to the defendant. In the second paragraph of the letter it was written:

Pursuant to its duties, the defendant carried out an assessment of the claimant. On 26 September 2017, the defendant’s housing officer, Rachel Fry, prepared a Housing Needs Assessment form, resulting in the completion of a personal housing plan. There is a statement from Ms Fry dated 17 May 2019. There is also a statement from the claimant dated 10 July 2019. In her statement, Ms Fry states:

The Housing Needs Assessment form was dated 26 September 2017 and was signed by the claimant underneath a written confirmation that the information supplied was true to the best of her knowledge and belief. The method of obtaining information from Miss McDonagh was by interview. I am not going to go through all of this. The documentation

I have mentioned the Housing Plan also completed by Ms Fry. On the first page there is a box, ‘Actions/reasonable steps to be taken by you’; the fourth bullet point, ‘Look for suitable accommodation in the private sector’, was ticked, and by it was written in manuscript, ‘Bedsits’. On the second page, ‘Private renting’, the entry ‘Actively search for privately rented properties to the value of … pm’ was completed by the insertion of ‘£300’, which was ringed.

Ms Fry’s evidence, which is consistent with the documents, is that the assessment form was completed during the interview: that is, that the information on it was recorded at the time and is therefore contemporaneous with the interview.

It is convenient to refer at this stage to the claimant’s own witness statement, where she refers to the defendant’s case on the interview and then continues:

Pursuant to the assessment, on 11 October 2017 the defendant offered the claimant interim hostel accommodation, which she refused. She subsequently refused further offers of bricks and mortar accommodation.

On 22 November 2017, the defendant wrote to the claimant’s solicitors. The letter included the following:

The claimant’s solicitors appealed against that decision by a letter of 30 November 2017. It quoted the last passage that I have read from the defendant’s letter and continued:

The defendant accepted on 16 March 2018 that it owed the full accommodation duty under section 73 of the 2014 Act.

By letter dated 8 May 2018, the defendant rejected the claimant’s appeal in respect of the allocation of a pitch. The second and third paragraphs of the letter are important.

The claimant’s solicitors responded to that letter with a judicial review pre-action protocol letter, dated 17 May 2018. On the second page, the letter says:

The claimant commenced judicial review proceedings, challenging the defendant’s decision not to consider her for a pitch because she had not demonstrated an aversion to bricks and mortar accommodation. In August 2018, those proceedings were dismissed by consent, with payment of the claimant’s costs, upon the defendant agreeing to reconsider her application for a pitch.

Meanwhile, however, the defendant had considered, written and, indeed, adopted a revised policy. That is the relevant policy for this claim. The purpose of the new policy was explained in the report of the Cabinet Member for Regeneration and Housing dated 18 June 2018; the summary said,

The new policy, which was about 60% of the length of the former policy and was significantly rewritten was, as paragraph 1.1 said, based on a banding system:

Before the policy was put to the council and adopted, the defendant carried out a Fairness and Equalities Impact Assessment, which was dated 21 May 2018. In section 1 it said:

The claimant’s solicitors challenged the new policy by letter dated 13 August 2018. The letter argued that the claimant’s application should be considered under the old policy (that was not done and the point has not been pursued), but in paragraphs 5, 6 and 7 it also contained a challenge to the legality of the new policy:

The following day, the claimant’s solicitors sent a letter that strictly related to housing, rather than the pitch, though the points overlap. The letter began by speaking of the claimant in the third person, but the fourth paragraph said:

The defendant wrote back on 10 September 2018. In respect of the challenge to the legality of the new policy, the letter picked up the paragraph numbers of the letter of 13 August 2018:

This elicited a further response from the defendant by letter of 29 November 2018. Under the heading ‘New Issues’, it said:

The claimant’s solicitor replied to that letter on 10 December 2018. The defendant gave a further response on 17 December 2018, which read in part:

At this point, I can draw the chronology to a close and turn to the claim.

As I have said, the claimant challenges both the policy and the decision made under it in respect of her. I propose to deal with the grounds in a rather different order and style from the way that they have been advanced. There are four main questions:

Is the policy unlawful because it does not contain a definition of ‘aversion’? The problem here arises from the cases on the provision of public sector housing to the homeless and the approach taken in that context. I have been referred to two main decisions of the Court of Appeal: Codona v Mid-Bedfordshire Council [2015] EWCA Civ 925 2005 HLR 1; and Sheridan v Basildon Borough Council [2012] EWCA Civ 335 2012 HLR 29. It suffices to discuss the later case. The appellants were Irish Travellers living on an unauthorised caravan site pending applications for assistance under the Housing Act 1996. Two of the appellants temporarily moved their caravans onto a neighbouring authorised site and the third stationed her caravan on the site’s entrance road. The respondent authority accepted that it owed a duty under section 193(2) of the Housing Act 1996 and made offers of bricks and mortar accommodation. The appellants refused the offers and requested review of the suitability of their accommodation. There were psychiatric reports in respect of the first and second appellants; these indicated that there was a significant risk of the first appellant suffering psychiatric harm if he had to accept the offer of accommodation, and that it was difficult to predict what effect living in conventional accommodation would have on the second appellant. The council decided that the accommodation was suitable. The decision letters all recorded that the panel had considered the appellants’ strong cultural aversion to conventional accommodation; that there were no pitches available on any of the caravan sites in the area; that, if a site became available, the authority would inform the appellant. The panel referred to the psychiatrist’s reports and concluded that if either the first or the

At paragraph 49 in the judgment of Patten LJ, he said this:

In the present case, it is the defendant’s contention that the Oxford Dictionary meaning of ‘strong dislike or disinclination’ is the correct understanding of ‘aversion’. The claimant’s argument is that the policy is unfair because the word ‘aversion’ is unclear and could mean different things to different people. In my judgment, that is not a sound point: cf. First Secretary of State v Sainsburys Supermarkets Limited [2005] EWCA Civ 520. As de Smith, Judicial Review (8^th edition), states in paragraph 5-089, when policies fall to be interpreted by the court their ordinary meaning should prevail. It seems to me, therefore, the absence of a definition is not capable of constituting unfairness.

In my judgment, as a matter of construction, the defendant’s policy bears the meaning contended for by the defendant in the summary and the detailed grounds of defence and proposed by Mr Davis, which is consistent with the ordinary meaning of ‘aversion’. I see no good reason to imply a meaning that is drawn, somewhat indirectly, from decisions in a quite different context of homelessness. In the homelessness cases, there is a mandatory non-deferrable duty to provide housing; accordingly it is appropriate to construe narrowly the circumstances in which offered accommodation may be considered unsuitable. Here, by contrast, the issue concerns eligibility for a pitch, not an absolute entitlement pursuant to a mandatory duty to provide accommodation there.

I think it convenient to make a declaration as to the true construction of the policy.

Did the defendant misdirect itself by applying an incorrect construction of the policy?

For the claimant, Mr Nabi argues strongly that either (a) it did or (b) one cannot be sure that it did not. He relies on a number of matters, of which these are the main ones.

There is some force in these points, but in my judgment, there are substantial answers to them.

First, the position concerning the claimant’s alleged ‘aversion’ in the ordinary sense of the word is not so clear-cut that one can draw any inference as to the meaning that must have been applied by the defendant. I will come on to say more about that later.

Second, the text of the letter of 8 May 2018 does not seem to me to be premised upon a psychiatric interpretation of ‘aversion’. The three reasons given for holding that the claimant had not demonstrated an aversion to bricks and mortar relate to what one might call a true cultural aversion rather than simply a preference, but there is no indication that the absence of some psychiatric condition was the key or, indeed, that any psychiatric condition or evidence was regarded as necessary to support the conclusion that an aversion existed. Subsequent letters point in the same direction. Thus, I have already referred to the defendant’s letter of 10 September 2018 where, in a passage that I have read out dealing with paragraphs 5 and 6 of the pre-action protocol letter, the defendant made clear that it was not suggesting a psychiatric report was required, ‘The test can be applied by the defendant’s officers based on evidence supplied by the applicant and through the defendant’s own enquiries.’ That indicates not that there is some psychiatric or quasipsychiatric hurdle to be surmounted, but that the relevant distinction is between a genuine cultural aversion and a preference, whether it be a strong preference or otherwise.

In the letter dated 15 November 2018, already mentioned, the claimant’s solicitor asserted for the first time that the claimant did have a demonstrable aversion to bricks and mortar.

There is a clear difference, despite Mr Nabi’s submission to the contrary, between a strong preference and an aversion. To take a trivial example: one might have a strong preference for claret over Rioja, but that does not mean that one has an aversion to Rioja. Examples can be multiplied endlessly. I accept Mr Davis’s submission that to assert a preference is not to assert by implication an aversion. Simply to talk of a ‘great’ preference or a ‘strong’ preference does not take matters any further.

As for the use in the earlier correspondence of words such as ‘unable’ or ‘cannot’, there is a real danger of reading correspondence as though it were some kind of legislative provision. These are practical letters being written in a practical way, giving effect to either a policy that existed or to what was clearly being treated as a policy before there was such a policy (because the need for aversion was being used as though it were a policy requirement when, in fact, it was not). In those circumstances, it makes perfectly good sense to say of someone who has a preference for a caravan over bricks and mortar that there is nothing to show why she cannot live in bricks and mortar. That does not imply a requirement that there be some absolute impediment to living in bricks and mortar (as though one would die if one were placed in bricks and mortar? Or be taken ill? Or be very unhappy?). It is simply a practical way of saying that a genuine cultural aversion will be a reason why one cannot live in bricks and mortar.

Having reviewed the evidence, I reach the conclusion that the defendant was using aversion in its normal sense, not in a restrictive sense that would have been apt for homelessness context but not here. That makes the best sense of the contemporaneous evidence and of the reasons that were actually given in the letters that I have read out for the decision that the claimant did not qualify under the policy.

In considering the third issue, there are two important matters to bear in mind at the outset. First, this was a question of fact, falling to the decision of the defendant and only to be interfered with on public law grounds. It is not open to the court to sift the evidence and decide whether it thinks that there is a better factual decision to be made. Second, the fact that a decision-maker does not refer to every matter when giving reasons for a decision does not of itself justify the inference that factors not mentioned have not been taken into account. It is normally to be assumed that material factors within the knowledge of the decision-maker have indeed been taken into account, unless one has a good reason to infer that the matters have not, in fact, been taken into account.

The defendant points to a number of matters as showing that it was entitled to reach the decision it did in respect of the claimant. The main matters are these.

First, the claimant resided in bricks and mortar accommodation until she was 17 years old. That is not put forward as proof that, if she could do it for 17 years, she could do it for the rest of her life and that is an end of story. The claimant suggests that she is victim of a blanket ban, but nothing that I have seen in the decisions or the explanations of the decisions justifies the supposition that the defendant has imposed a blanket ban on eligibility upon the claimant. In particular, there is nothing to show that the defendant has assumed that, because the claimant lived with her parents until the age of 17 in bricks and mortar, she cannot now or at any other point have an aversion to bricks and mortar. Nevertheless, the fact that she did live in bricks and mortar for 17 of her currently 24 years is in my judgment a factor that the defendant was entitled to take into account when considering the evidence and reaching its conclusion. One would have thought that its relevance, even if it might be overridden by other matters, was pretty obvious.

Second, when the claimant first completed an application for housing in September 2012, although she said that she was seeking to live in a caravan or mobile home, she also stated that she would accept a flat or a bedsit. Again, this does not prove that she cannot at any stage thereafter have had an aversion to such accommodation, but it is a material factor that the council was entitled to take into account.

Third, the defendant has said (I refer to the letter of 8 May 2018), and it has not been contradicted, that it was not until 2015 that the claimant changed her application to show that she was seeking a place on a gypsy or traveller site, that is, that from then on she was not considering bricks and mortar accommodation.

Fourth, there is the interview with Ms Fry on 26 September 2017. The correspondence that followed the letter of 8 May 2018 did not allege that the defendant was wrong to say that the claimant would be willing to accept an offer of bricks and mortar. Nor, significantly, did it raise the matters that are now raised in paragraphs 7 and 8 of the claimant’s statement dated 10 July 2019. It is, of course, entirely possible that the claimant, having a significant preference for a caravan over bricks and mortar, was willing to contemplate bricks and mortar as being very much a second best. But that does not mean that she was not indeed willing to contemplate bricks and mortar, or that some suspicious explanation must be sought for her decision to do so, or that any particular weight should be placed on the matters that she now raises in her statement. Indeed, the pre-action protocol letter (which, of course, postdates the decision under challenge) says, ‘Our client does not have a complete aversion to conventional housing’. By itself, that might be construed as referring to ‘aversion’ in the more psychiatric sense in the homelessness cases. However, the letter continues, ‘Our client has a very strong preference for continuing her way of life of living in a caravan’. That indicates a ‘very strong preference’ but by no means an aversion. Also written after the decision under challenge is the witness statement of Parminder Sanghera, which states at paragraph 4:

It is true, of course, that the claimant has lived for several years in a state of homelessness, in that she has been in caravans on unauthorised sites, vulnerable to being moved on. To say that this fact requires a finding that she has an aversion to bricks and mortar is, however, greatly to overstate the case. The most that it shows is that she has a preference, whether cultural or otherwise, for a certain form of accommodation; and, given that it was a state of affairs that obtained at the same time that she had stated both in 2012 and 2017 that she was willing to consider bricks and mortar accommodation, it cannot be said that the state of affairs compelled a finding of an aversion.

What of the suggestion that the defendant failed to refer to numerous matters relied on by the claimant in support of her claim to have an aversion (such as the reference to panic in the letter of 22 August 2017)? The short point is that the defendant’s obligation was to state reasons sufficient to enable the claimant to understand why it had reached its decision. It was not bound to record every matter to which it had had regard, and in the absence of strong evidence to the contrary it is to be presumed that it had taken into account the information that was before it. I see no reason to suppose that it had not done so and there is nothing indicated in the papers that shows there were things that ought to have been mentioned that were not mentioned.

I come, finally, to the question whether the policy is unlawful because it was reached in breach of the duty under section 149 of the Equality Act or is irrational. The concept of irrationality seems to me to add nothing, in the circumstances of the present case, to the Equality Act argument.

Section 149 of the 2010 Act provides in part as follows:

advance equality of opportunity between persons who share a relevant

The duty under section 149 (‘the public sector equality duty’) has been considered in a number of authorities. I have been referred to the most important ones. It will suffice now to mention simply to the decision of the Supreme Court in Hotak v London Borough of Southwark [2015] UKSC 30. The Court there discussed several other authorities, including R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, and R (on the application of Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin).

In Hotak, Lord Neuberger said: ‘74. As Dyson LJ emphasised [in Baker], the equality duty is ‘not a duty to achieve a result’, but a duty “to have due regard to the need” to achieve the goals identified in paras (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained [in Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104] that the Parliamentary intention behind section 149 was that there should “be a culture of greater awareness of the existence and legal consequences of disability”. He went on to say in para 33 that the extent of the “regard” which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is “appropriate in all the circumstances”. Lord Clarke suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word “due” in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment.

Mr Nabi’s submissions under section 149 may, I think, he summarised under two heads.

First, he submitted that the result of the defendant’s policy is to create a form of discrimination, when comparing the positions of persons preferring caravan over bricks and mortar (let us, for simplicity, say ‘Travellers’) as compared with the rest of the population who (let us assume) prefer bricks and mortar. Someone who prefers bricks and mortar simply applies and gets put on the waiting list and, unless he or she has a priority, will simply take a place in the queue. The applicant may never be given accommodation, but he or she is at least on the list. By contrast, in the case of the ‘Traveller’, the applicant cannot get onto the list in the first place.

Second, he made a point that, if it did not originate with me, nevertheless was latched on to by me when I gave permission to apply, when I said:

In my judgment, neither of these arguments succeeds.

First, the equality duty under section 149 is not a duty to provide a particular outcome. See Lord Neuberger’s remarks in Hotak. The decision of the Court of Appeal in London Borough of Hackney v Haque [2017] EWCA Civ 4, which I have considered though I have not yet referred to it, indicates that the local authority does not have to give reasons in respect of its discharge of the duty. In the present case, however, there was a full assessment, which took into account the impact of the policy on the protected characteristics, including race. The assessment was of course in respect of a policy, not of particular decisions under it, and was therefore at a higher level of generality. But a local authority is entitled to make decisions in accordance with the consistent application of a lawful policy. Whether or not one agrees with the defendant’s assessment or thinks that various factors might have been balanced differently, it is clear that the defendant had due regard to the matters specified in section 149(1).

Second, as regards the matter I mentioned when granting permission, the critical point is that the valuing of a traveller’s culture is actually achieved by the policy itself. The ‘demonstrable aversion’ requirement is not directed to the question whether the culture is one that is valued or ought to be given respect: that question receives its answer from the policy itself. Rather, the requirement is directed to the scarcity of resources and the need to follow some course in order to allocate scarce resources to those in greatest need. Thus it is not a valid objection to the requirement to say that it fails to afford inherent value to the cultural practice.

If and in so far as the submission is that, by dealing with scarcity of resources by creating an exclusionary factor rather than by introducing banding so as to create priorities, the policy is irrational, the submission goes far too far. To say that people without an aversion should be necessarily put on a waiting list is untenable. Of course, ideally they might be put on a waiting list. Indeed, ideally they might be given pitches. However, where resources are very limited (as is indicated by the evidence regarding the adoption of the policy), there may very well be strong grounds for saying that persons who do not have an aversion but merely a strong preference driven by culture, should not be put onto the waiting list at all. For example, an applicant without any aversion to bricks and mortar might be on the waiting list and then given a pitch in circumstances where, despite general pressures on pitches, a vacancy has arisen and the applicant is next in line. If there is not and is unlikely to be an available bank of pitches to accommodate changing circumstances, such an outcome may very well serve only to undermine the policy of allocation to those with greatest need. A pitch that might be needed for those in greatest need next week will have been taken by someone without such need. The short point is that there is no basis for supposing that the failure to use a banding system is irrational.

For these reasons I dismiss the claim and shall make a declaration as to the meaning of