Case No: B5/2007/2471
Neutral Citation Number: [2008] EWCA Civ 523
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
(MR RECORDER KEYSER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 9th April 2008

Before:

LADY JUSTICE ARDEN  DBE
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Between:

	LEE
	Appellant	
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RHONDDA CYNON TAFF COUNTY BOROUGH COUNCIL	

Respondent	

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Mr S Cottle (instructed by Shelter Cymru) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lady Justice Arden  DBE:

1.	This is a renewed application for permission to appeal from the order dated 14 April 2007 made by Mr Recorder Keyser, dismissing the appellant’s appeal against a decision of the housing officer of the respondent -- that is, Rhondda Tynon Caff CBC -- that certain accommodation offered to her had been suitable and that the authority had thus discharged the respondent’s housing duty under the Housing Act 1996.  Mr Stephen Cottle appears for the appellant, and he informs me that the appellant is a Romany gypsy and that she has been living with her family on a site in which she is to be evicted.  It is an unauthorised site.  He tells me that she has a long history of being on that site and indeed was born there.  The position is that the respondent offered the appellant a flat, but she contends that she should be offered a pitch for a caravan.  She has a caravan which she is presently living in but is not able to move it, and the authority has not offered her a site.  The decision letter on review is at the bundle page 156.  The critical paragraphs are on the first page:

“Aversion to bricks and mortar / Change of lifestyle

The panel took consideration of Ms Lee 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 Taff area on which the family could locate their caravan.

The two privately owned caravan parks within Rhondda Cynon Taff are located in Pont Pentre Upper Boat, Pontypridd 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.”

2.	Mr Cottle submits that the housing authority was subject to a full housing duty, and as such was under a duty to facilitate the appellant’s way of life and thus genuinely to examine ways and means of addressing her particular needs and that it had a duty as a result to consider whether to exercise its power to acquire a site under section 24 of the Caravan Sites Control and Development Act 1960 before saying to the appellant that it did not have anything which was culturally appropriate for her.  He seeks to argue that, if it is arguable, that the authority should consider whether to exercise its powers, and that to do so was consistent with its duty to consider ways and means of providing culturally appropriate accommodation (and the words “ways” and “means” are a reference to Codona v Mid-Bedfordshire DC [2005] HLR 1: I will have to come back to that authority).  Mr Cottle further relies on the state’s positive obligation to facilitate the gypsy way of life which is imposed by Convention jurisprudence, and for this purpose he relies on Chapman v The UK 10 BHRC 48.  The duty, however, is, as it seems to me, only a duty to consider the needs of this ethnic group, and I will proceed on that basis.

3.	Mr Cottle also relies on the race relations duty in section 71 of the Race Relations Act 1976, but has not developed his argument on that before me today.  He also relies on section 3 of the Housing Act 2002 and section 2 of the Local Government Act 2000 but, likewise, has not developed those arguments before me today.  

4.	The respondent had before it the decision in Codona, and it is sufficient for me to go to paragraph 49 of that judgment.  In that case Auld LJ, with whom Thomas LJ and Holman J agreed, held as follows, in relation to a gypsy’s claim arising out of a decision made with respect to interim accommodation:

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

5.	Mr Cottle points out that in this particular case there was no pressure of time as in the Codona case, and he submits that it is arguable that the ways and means of meeting a gypsy’s claim should include the possibility of acquiring a site on which they could put their mobile home.  In my judgment that is an arguable point.  It would follow that the authority, having not considered that point, would not have discharged its statutory duty.  Mr Cottle puts the point further this way: he submitted to the recorder that the respondent had not considered all relevant matters or made proper enquiries because it had not considered whether it should acquire a site (see paragraph 11 of the recorder’s judgment).  

6.	The recorder dealt with this point at paragraph 22 by rejecting it and giving two reasons.  First, that the court on an appeal from a housing review officer’s decision was not in a position to consider the adequacy of strategic decisions made by the respondents and, in addition, that it was for the local authority to decide what enquiries to make.  

7.	Mr Cottle submits to me that there are reasonable grounds for arguing that the recorder’s approach in this paragraph was wrong.  He submits that it would be no answer for a housing authority to say that as a result of its strategy it had no housing available, and thus that the first reason was not a good reason.  As regards the second reason (as I have called it) that the power of the local authority to decide what enquiries it should make could not protect a local authority which had made no enquiries at all as to one of the ways and means in which it could provide suitable accommodation for a gypsy.  He also submits that the question of giving special consideration to the cultural needs of the ethnic group of gypsies and travellers was not present in the Cordina case and the particular need is, of course, highlighted by the Chapman case.  

8.	In my judgment those grounds disclose a real prospect of success -- that is, a prospect of success which is not fanciful.  

9.	There is one more reason why I give permission to appeal, even though this is a second appeal.  In Codona this court criticised the last sentence in the guidance then applicable in England for dealing with the provision of suitable accommodation to travellers.  The whole paragraph of the relevant paragraph of the guidance is as follows:

“Under s.175(2) applicants are homeless if the accommodation is a caravan, houseboat, or other moveable structure and they do not have a place where they are entitled, or permitted, to put it and live in it.  If the duty to secure accommodation arises in such cases, the housing authority is not required to make equivalent accommodation available (or provide a site or berth for the applicant’s own accommodation).  However, the local authority must consider whether such options are reasonably available, particularly where this would provide the most suitable solution to the applicant’s accommodation needs.”

Then comes the last two sentences which were criticised: 

“These circumstances will be particularly relevant in the case of Gypsies and travellers, whose applications must be considered on the same basis as all other applicants.  If no pitch or berth is available to enable them to resume occupation of their moveable home, it is open to the housing authority to discharge its homelessness obligations by arranging for some other form of suitable accommodation to be made available.”

10.	What was said was that, in the light of Chapman’s case, “special consideration” given to the general needs of gypsies requires more effort on the part of the local housing authority than that suggested by the sentences last quoted (see Codona, [48]).  Now the position is that the same sentences appear in the Welsh Code of Guidance -- see paragraph 18(40).  There have been no revision to them since the decision of Codona and thus it would, in my view, be right for this court to consider the point made in Codona with reference to the Welsh Code of Guidance.  Of course, Mr Cottle has fairly pointed out that the authority had the decision of Codona before it made its decision.  He also accepts that they probably had the Price decision.  However, he does not go so far as to say they necessarily had the criticism of those two sentences in mind, and that is a point which this court may wish to consider.  

11.	Mr Cottle also informs me that this is not the only case affecting this ethnic group, and that for those reasons this would be an appropriate case for this court to hear.  I accept that submission.

12.	So far as directions are concerned, obviously the appeal should be heard as soon as conveniently possible, and if it can be done it should be heard in Wales.  Mr Cottle has drawn my attention to another case in which a permission to appeal has been given by this court, namely South Cambridgeshire District Council v Gammell which is reference C3/2008/0042, where permission was given by Waller LJ.  That is a case of planning control where an eviction order was sought against travellers, and one of the grounds of appeal for which Waller LJ gave permission was that the judge erred in deciding that the use of section 24 of the Caravan   Sites and Controlled Development Act 1960 did not fall for consideration in the context of a proposed application under section 187B of the Town and Country Planning Act.  So there is, to that extent, a community of issues between that appeal and this, although of course housing is a very different subject matter from planning control.  Having discussed the matter with Mr Cottle, I propose to make a direction that the presiding judge should consider whether the two appeals should be heard by the same constitution, one after the other, to enable costs to be saved and the court to be assisted by argument in both cases.

Order:  Application granted