Neutral Citation Number: [2008] EWCA Civ 1013
Case No: B5/2007/2471
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(MR RECORDER KEYSER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16th July 2008

Before:

LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
and
LORD JUSTICE RICHARDS
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Between:

	LEE
	Appellant	
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RHONDDA CYNON TAF COUNTY BOROUGH COUNCIL	
Respondent	

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(DAR Transcript of 
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Mr S Knafler (instructed by Garden Court Chambers) appeared on behalf of the Appellant.

Mr W Beglan (instructed by Rhondda Cynon Taf Borough Council) appeared on behalf of the Respondent.

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Judgment
Lord Justice Longmore:

1.	The appellant, Ms Lee, is a gypsy, and from about September 2002 she lived without lawful permission in a caravan at Beddau Caravan Park, which was a site owned by the respondent Borough Council, whom I will call “RCT”.  She lived there with her two daughters, Fallon who was born on 12 January 2002 and Shannon who was born on 5 August 2003.  By October 2003 RCT had intimated an intention to close the site and to evict, at any rate, some of the occupiers.  Ms Lee had been referred to a housing advice centre.  

2.	In September 2004, although Ms Lee was still resident at the site, she made a first application to RCT for accommodation as a homeless person, the determination of which was, in the event, flawed.  She made a second application for accommodation as a homeless person on 20 March 2006.  The application form showed the reason for leaving as follows: 

“Intending NTQ [Notice to Quit] site closed down.”

In response to the question on the form “Does the applicant need to live in a particular part of the Country Borough area?  If YES give reasons”, the appellant stated: 

“Beddau or Vrynna only areas known.  No risk of violence.”

In answer to the question “What type of accommodation are you looking for?”,

the appellant ticked the boxes for “Council”, “Housing Association” and “Private Rental”.  

3.	The reasons for application were given as follows by Shelter Cymru, whom I will call “Shelter”, on her behalf: 

“Client has presented as threatened with homelessness.  Client is currently residing on a caravan site in Beddau which is owned by RCT.  

Client has been advised that the council are going to serve her with [notice to quit] the site but she is unsure as to why.  

Client states she has been residing at the site for approximately 4 years.  Client states since moving in she has attempted to pay rent but this has been refused.  

Client has previously been served with [notice to quit] but the notice was invalid.  

Client states that there are other families on the site who are being allowed to remain on the site and site improvements have been done so client is unable to understand why she has to leave.”

4.	On 24 May a homelessness officer of RCT, Ms Paula Miles, wrote to Ms Lee in connection with her application.  That letter stated that RCT accepted that Ms Lee was homeless, or threatened with homelessness, and that she had a priority need because she was responsible for the care of the defendant child.  It confirmed RCT’s acceptance that there was therefore under a duty to provide Ms Lee with suitable alternative accommodation to occupy.  On 30 May RCT wrote to Ms Lee with an offer of a council tenancy of a dwelling house in 7 Moorland Crescent in Beddau.  The letter stated that the accommodation would be made available in order fully to discharge RCT’s housing duty to the appellant and that it was a final offer, and it informed Ms Lee of her right to request a review of the offer.  Ms Lee refused the offer.  On 7 June 2006 RCT’s case officer made a telephone call to the appellant to enquire why she had refused the offer.  The file note of the conversation records that Ms Lee says that although she wanted a property in Beddau she did not want one as close to the Bowman Pub as 7 Moorland Crescent was, and that the area was “extremely rough” and “subject to high levels of crime and drug misuse”.  

5.	On 14 June 2006 Shelter wrote to RCT to confirm Ms Lee's refusal of the offer of accommodation and to request a review of the suitability of that offer.  After RCT had acceded to a request by Shelter to postpone the review hearing and made the homelessness file available for inspection, the shelter’s solicitor sent to RCT a five-page-long letter setting out grounds for requesting a review.  The grounds mentioned in the letter were summarised by the judge in the following way.  First, RCT had failed to demonstrate that they had conducted an adequate assessment of the suitability of the property before making an offer.  In particular it had failed to have regard to Ms Lee’s status as a traveller, to her background and lifestyle or to her aversion to conventional housing.  Second, if an adequate assessment had been carried out, RCT would have concluded that the offer of accommodation was unsuitable for Ms Lee in that it was unreasonable for her to accept it because of her cultural aversion to conventional housing and the change of lifestyle that would be required of her.  Third, the only suitable accommodation for Ms Lee was the Beddau Caravan Park where she had been living, because only there could she continue to carry on her lifestyle with freedom from discrimination and racism, other travelling communities and the general public.  It may be noted that there was no suggestion in that letter at that time that the local authority should acquire a site specifically for the appellant.  

6.	The review was conducted by RCT’s independent review panel.  Ms Lee did not attend and was not represented, although Shelter submitted another matter in the nature of a further submission.  There was a minute of the hearing signed by members of the panel and that contained the following comments: 
(Checked to audio: could not find in bundle)
“The panel has considered the aversion of bricks and mortar and considered the implications of the case.  However, the family needs to remain in Beddau and apply to the local authority -- in this case (inaudible) -- that in view of there being no accommodation in Beddau there were no other options.”

7.	Formal notice of the decision and of the reasons for it was given in the three-page letter of 23 July 2006 to Shelter’s solicitor, which said, among other things: 

“Aversion to bricks and mortar / Change of lifestyle

The panel took full consideration of Ms Lee’s cultural aversion to bricks and mortar provision.  However, after enquiries the panel are satisfied there are no suitable alternative land or caravan sites in the Rhondda Cynon Taf area on which the family could locate their caravan.  

The two privately owned caravan parks within Rhondda Cynon Taf are located in Pont Pentre Upper Boat and Hirwaun.  Both are residential and do not allow touring caravans on site.  Additionally both parks are outside Ms Lee’s area of choice.  

The Authority was therefore unable to provide Ms Lee with a caravan site or other land on which to site her caravan in its area.  This left no alternative other than to make equivalent accommodation available in the area of her choice.  

There is also no evidence to confirm that it would cause Ms Lee and her family psychiatric harm if they were to be re-housed in bricks and mortar accommodation.

Suitability and Offer 

Ms Lee’s circumstances were fully considered.  These included her cultural aversions, social and welfare factors, areas of choice, her support networks, the fact she is registered with the GP in Beddau Surgery and the placement of her children in the local school in Beddau.  

The panel also considered the information supplied in your letter of 12th July 2006 which confirms the need for Ms Lee to remain in the Beddau area because the children attend school in the area and the family’s successful integration into the community […]  

Ms Lee in her application for Council accommodation has specifically requested that she be considered for housing in the Beddau, Tynant, and Brynna areas.  

Additionally at the time of making her homeless application on 23rd March 2006 Ms Lee confirmed that she wish[ed] to be considered for accommodation in the Beddau area.”

That is all of the decision letter which I need to quote.

8.	The legislative framework is of course well known.  The provisions covering the duties of a local housing authority to homeless persons are contained in Part 7 of the Housing Act 1996 -- I need only refer to the most relevant provisions of that Act.  Section 184 provides: 

“(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves --
(a) whether he is eligible for assistance, and 
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part. 
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.”

Section 188 then deals with emergency situations which do not arise in this case.

9.	Section 193 deals with the local housing authority’s duty to persons with priority need who are not homeless intentionally, and it is common ground that Ms Lee was such a person.  So far as material, that section provides as follows: 

“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. 
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. 
…
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
…
(7) The local housing authority shall also cease to be subject to the duty under this section if --
(a) the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI”

10.	Section 202 then provides for an applicant’s right to request a review of the local housing authority’s decision.  Thereafter section 206 makes provision for the manner in which a local housing authority can discharge its functions under Part 7 with respect to an applicant’s form of accommodation on the grounds of homelessness.  Finally, section 182 relates to the exercise of the local authority’s functions under Part 7 in the following way: 

“In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State.”

In Wales housing is of course a developed matter, and section the reference in 182 to the Secretary of State is to be read as a reference to the National Assembly of Wales.  Provision is then made for an appeal on any to the County Court.  Ms Lee availed herself of that right, but Mr Recorder Keyser QC dismissed her appeal and there is now an appeal to this court.

11.	In the course of his decision the learned Recorder held that the complaint that RCT had not had proper regard or respect for the fact that Ms Lee was a gypsy and had an aversion to settling in bricks and mortar accommodation had not been made out.  He said that there was no evidence that RCT had failed to make relevant enquiries about the feasibility of accommodating Ms Lee on a caravan site.  The evidence was that they had made enquiries inside their own area and that there were no available sites.  He further held, in paragraph 22, that it was unrealistic to require RCT to inquire into the possibility of acquiring a piece of ground for the siting of a single caravan for Ms Lee, nor was it appropriate for a panel, which was conducting a review of the decision to offer particular accommodation, to question or revisit strategic decisions about the provision of accommodation for gypsies in general.  It is these conclusions that are challenged on this appeal brought with the permission of Arden LJ, who thought that it was arguable: 1) that RCT should have expressly considered whether to acquire a site for Ms Lee;  2) that the local authority could not be the final judge of what inquiries it should make; and 3) that the local authority had not satisfactorily applied their mind to the criticism of the relevant code of guidance, issued pursuant to section 182 of the 1996 Act, which was made in the case of Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925.  

12.	The law, in brief.  Article 8 of the European Convention of Human Rights requires respect to be given to a person’s private life, family life and home.  The European Court held in Chapman v UK [2001] 33 EHHR 18 in paragraph 96 that the vulnerable position of gypsies meant that special consideration should be given to their needs and their different lifestyle when local authorities arrive at decisions in particular cases, and that to that extent there is a positive obligation on contracted states to facilitate the gypsy way of life.  On the other hand the court recognised in paragraph 98 that there was no duty to guarantee that way of life by providing an adequate number of suitably equipped sites.

13.	In R (Price) v Carmarthenshire CC [2003] EWCA 42 Admin, Mr Knafler submitted that if the claimants had an aversion to accommodation in bricks and mortar then the offer of such accommodation could not amount to the offer of suitable alternative accommodation.  Newman J rejected that submission of Mr Knafler and held, in paragraph 12, correctly in my view, that an offer of bricks and mortar was capable of being suitable alternative accommodation; but he acknowledged in paragraph 18 that the requirement to respect the applicant’s private and family life and home did carry with it a positive obligation on the part of the public authority.  The question therefore was whether the local authority had in fact given special consideration to the applicant as a gypsy and, if so, whether that consideration was lawful and adequate.  Newman J also said that the suggestion that the current English guidance that gypsies should be considered in the same way as any other applicant did not accord with the Strasbourg jurisprudence precisely because the local authority had to give special consideration to the applicant as a gypsy.  

14.	This court endorsed the approach of Newman J in the case which I have already mentioned of Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925.  In giving single judgment to the court, Auld LJ, with whom Thomas LJ and Holman J agreed, said in paragraph 49 that the requirement to accord respect to the applicant’s gypsy culture: 

“…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.”  

15.	It follows that, where land is not available or cannot readily be made available on which a gypsy applicant could stage his or her caravan, it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind provided that it satisfies the Wednesbury minimum line of suitability.  It is in the light of that legal position that Mr Knafler’s arguments fall to be considered in the present case.  It is clear from RCT’s decision letter that RCT did give special consideration to Ms Lee’s position as a gypsy since there is a paragraph headed “Aversion to bricks and mortar/change of lifestyle”; so the only question, as Newman J said, was whether that consideration was lawful and adequate.

16.	Mr Knafler submits that it was not lawful and adequate because RCT did not consider whether they should acquire an alternative site.  That however seems to me to be, in the context of a homelessness application, to be wrong, substantially for the reasons helpfully given by Mr Beglan for the local authority in his skeleton argument.  Homelessness applications are expected to be determined within a short timeframe, ideally at least within 33 days of an acceptance of a requisite duty.  If a new site is to be acquired for stationing a caravan for residential purposes, that will usually mean a new use which will typically require planning permission.  That will require determination by the local authority planning committee, especially if it means a departure from the local development plan, which it may well, and any decision so made is liable to be appealed.  After all that, land would have to be bought if it is not already owned by the local authority itself.  All this is, in my judgment, inconsistent with the manner in which homelessness applications are expected to be dealt with by the housing department, and especially since they are expected to dealt with with a degree of promptness.  As, moreover, the Recorder himself observed, that is really inconsistent with the law as laid down by Price and Codona, to the effect that bricks and mortar accommodation is at any rate capable of being suitable accommodation even for a gypsy.

17.	All that is not to say that there might not be unusual circumstances in which a local housing authority might be expected to do more than consider availability and sites within their own area.  If, for example, there was a question of an applicant being at risk of suffering psychiatric harm, it might well be that the local authority should take that consideration into account, specifically in deciding what, or what further, enquiries they should make.  In the present case, however, there is no risk of any such psychiatric harm and, moreover, the applicant has herself expressed a wish to live not merely in the local authority area but in a specific part of it, and that wish has been accommodated.

18.	As for the guidance which is given to local authorities in both England and Wales, I would only repeat the reservation of Newman J and Auld LJ (as I would understand him) in Price and Codona respectively, that it is not accurate to say that gypsies or travellers should be considered on the same basis as any other applicant because both the Strasbourg jurisprudence and our own law require that special consideration should be given to a gypsy’s needs “in arriving at decisions in particular cases”, to cite paragraph 96 of Chapman.  But the local housing authority in this case did give the applicant special consideration in this case and there is no possibility that they can have been misled by any guidance in Codona.  

19.	Lastly, Mr Knafler sought permission to argue, firstly, that it was for the court, not the local housing authority, to determine what enquiries were reasonable, and that it is not enough to say that, in accordance with the Wednesbury principle, a reasonable authority would not consider it necessary to make further enquiries, and secondly that, even if that is wrong and the court does allow the authority to determine the scope of its inquiries, the court should conduct a more intensive examination of the local authority’s decision than Wednesbury would normally allow in the Article 8 context which I have already mentioned.

20.	For my own part, I have some difficulty in understanding that contention in the absence of some suggestion of what further enquiries RCT should have made.   Once it is decided that RCT is not obliged to make inquiries into acquiring a specific site on which the applicant could park her caravan -- and it is the case that they did not have an available site for her -- it is not clear, at any rate to me, what further enquiries the authority could be expected to make. They did give Ms Lee’s case special consideration as they were required to do, but they decided that the offer of 7 Moorland Crescent was in fact suitable.  That is a decision which was, in my view, open to them.  These further two points that Mr Knafler seeks to argue were not put to the Recorder, so he needs permission to advance them.  For my part, I consider that it is much too late for these rather difficult points to be put forward for the first time, although I would say that for my part I am very doubtful that it can be the case that it could be for the court to decide what are the appropriate enquiries for a local authority to make in the circumstances of this case in the general terms suggested.  The jurisdiction of this court is exercising is, after all, a jurisdiction which has been held to be akin to judicial review (see in particular the Runa Begum case [2000] 1 WLR 306).  I would not allow these points now to be argued for the first time, and I would dismiss this appeal.

Lord Justice Laws: 

21.	I agree

Lord Justice Richards:  

22.	I also agree.  

Order:  Appeal dismissed