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21/02/2011

Unreasonable bungalow

Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010 [Unreported elsewhere].

This was the s.204 Housing Act 1996 appeal of a decision by Mendip DC that its offer of a two bedroom bungalow was an offer of suitable accommodation under s.206 of the Act and, therefore, it was right to discharge duty under s.193 of the Act.

Ms Thompson had been a traveller for 20 years. In February 2008, she moved her caravan onto land in Glastonbury owned by Mendip. She was served with a removal order in June 2008, but after negotiations, was allowed to stay. Ms T applied as homeless, and was initially turned down as not in priority need. After a report by a consultant psychiatrist, and consideration of a second medical opinion, Mendip revised that decision and in April 2009 accepted that it owed the full duty. Ms T was found to be suffering from anxiety and long-term depression, which was ameliorated by a rural living environment, and that conventional accommodation, certainly in a built up area, would make her ‘very anxious and worsen her depression as well as conflicting with her cultural values’. (This opinion was not challenged at any point by Mendip).

In December 2009, Mendip offered the two bedroom bungalow. Ms T refused and asked for a s.202 review of its suitability. The review letter contained a stated that “As Ms Thompson is a member of the gypsy community, there is a requirement for the Council, when considering the suitability of any offer of accommodation to her, to give special consideration to securing accommodation which will facilitate her traditional way of life”. The review then cites R (Price) v Carmarthenshire CC [2003] EWCA 42 Admin and the relevant passage of the Code of Guidance . Nonetheless, the review concludes that the offer of accommodation was suitable as “it was the only type of accommodation which could be offered at this time due to there currently being no suitable alternative to facilitate Ms Thompson’s cultural lifestyle”.

On appeal, Ms Thompson argued:

The decision was wrong because it failed to consider relevant facts, namely the existence of other sites. The Gypsy and Travelling Strategy document contained a list of potential sites. There had been no consideration of this and thus potnetial provision of accommodation for Ms T.

The decision was wrong because the decision-maker had misapplied the principles in Cadona v Mid-Bedfordshire Borough Council [2004] EWCA Civ 925. and Lee v Rhondda County Borough Council [2008] EWCA Civ 1013 . Cadona concerned urgent circumstances where all the Council could offer was B&B accommodation. This decision was upheld by the Court of Appeal.

Para 59 of Auld LJ’s judgment in Cadona was quoted, to the effect that this was short term accommodation as a short term measure taken as a last resort. It was not the case that there was such urgency in this case.

In Lee, there was no evidence as to psychiatric harm being caused by bricks and mortar accommodation, and, it was submitted, the law in Cadona was not altered by the Court of Appeal in Lee.

The review decision was unreasonable because of the evidence as to the effect of conventional accommodation on Ms T’s mental health. The offer of accommodation made fell below the minimum line.

In response, the Council argued that:

This was temporary accommodation and the situation could be reviewed.

There was no positive obligation on the Council to create a travellers’ site

Enquiries had been made as to the availability of a site via engaging an ‘expert’, Mr Swift. These enquiries did not have to be ‘of a CID standard’ and those made showed no sites.

On the medical evidence, the Council argued there was little it could do. Ms T had chosen an unconventional lifestyle and could do more to help herself.

Held:
In view of the medical evidence, the review decision was unreasonable and must be quashed. ‘Suitable must be given a broad meaning’ and the accommodation offered did fall below the minimum standard when considering Ms T’s circumstances which included her mental health.

This was enough for the appeal to succeed. However, the other grounds would also have succeeded. The decision maker failed to carry out adequate enquiries, failed to have regard to the information that found its way into the strategy document and either did not know of, or ignored, the existence of sites with the potential to accommodate Ms T whether in the ownership of the Council or not.

Further, the decision maker had failed to have regard to the principles in Cadona and Lee. The application of Cadona is limited to circumstances of urgency.

Decision quashed.

Comment
While this is only a County Court appeal, the interpretation of Cadona, on when bricks and mortar accommodation may be considered suitable for travellers, is clear in its direction. Further, on the evidence of the Council’s own strategy document, there were potential sites not considered in the review, strengthening the argument against the ‘this is all that is available’ decision. But it is the medical evidence – unchallenged – that was clearly most persuasive here. It could not be reasonable, or suitable, to place the appellant in accommodation which would exacerbate her depression.

To some extent, that key finding on the medical evidence side steps the issue, raised in a rather unsubtle and unappealing way by the Council, of a distinction between new travellers – a choice of lifestyle – as opposed to gypsies or travellers as an ethnic or cultural group. As we saw, this distinction was raised – without conclusion – by the ECtHR in Horie v UK [our report], with the question being posed whether a ‘personal choice’ of lifestyle would attract the same ‘positive obligation to facilitate a way of life’ as that owed to an ethnic or cultural group. I suspect this a question that will be revisited here in the future.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. CJ

    Well done to Sharon Baxter from CLP and David Watkinson on this great result.
    In both of the CoA authorities, Codona and Lee, there had been emphasis that perhaps it might have been different if there was a psychiatric report about aversion to conventional housing( albeit that there was a psychologist’s report in Codona). Here there was just such a report and Ms Thompson is a New Traveller albeit on the road for many years.
    Though we would certainly prefer a situation where it was accepted, without the need for expert evidence, that Romani Gypsies and Irish Travellers who are seeking a pitch do have an aversion to housing, this case makes clear that, at least at the moment, a good psychiatric report is absolutely essential.

    Reply
    • NL

      Definitely a good result. The findings in respect of what Cadona meant – short term, urgent and where options exhausted, were also positive.

      Reply
  2. CJ

    Mendip DC sought permission to appeal from the CoA and recently obtained permission. This week they have withdrawn the appeal.
    So this remains, albeit at county court level, an extremely significant decision on the question of ‘aversion to conventional housing’ for Gypsies and Travellers.

    Reply

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