R (McDonagh) v Hackney LBC , Administrative Court, February 15, 2012 [not on bailii – taken from a Lawtel note] concerned a claim for judicial review brought by a traveller against Hackney’s policy regarding the allocation of its caravan pitches for travellers.
In June 2011, there were only 27 residential caravan pitches within Hackney and only 456 residential sites in London as a whole [not included in the Lawtel note, but reported in The Guardian last summer]. While it is not clear from the Lawtel note, I do not think I would be wrong in presuming that demand for the pitches far outnumbered their supply and there was plainly a lengthy waiting list.
To get onto the waiting list Hackney’s policy required applicants to demonstrate, through the provision of documentary evidence, that they lived in Hackney or had a connection to the area. Applicants were also required to re-register every year, which included supplying documentary evidence of their address. A failure to re-register resulted in applicants being removed from the waiting list.
The claimant traveller sought judicial review of the policy and contended that it was irrational because the requirement to have a local connection to Hackney and re-register annually was unduly burdensome for travellers.
The Administrative Court dismissed the claim for judicial review. There was nothing irrational in either requirement. An authority was entitled to ration a scarce resource by limiting it to people who had a connection to Hackney and it was necessary for applicants to re-register annually so that Hackney could be satisfied that such people still had a local connection to Hackney. In cases involving a scarce resource it was inevitable that there would be competing interests and a policy would always have its advantages and disadvantages.
Comment
The fact that there are insufficient sites for travellers is well documented. As is the continual failure of central or local government to do anything about it. Against that backdrop, I don’t think anyone can argue against local authorities operating allocation policies to ensure that those sites that do become available are allocated to travellers transparently. However, I would also have thought that it is equally important for such policies to be framed so as not to disadvantage the very people the scheme is designed to help.
Therefore I am not very surprised that this policy was attacked as being irrational. It is clearly arguable that it cannot be rational for a policy to require travellers to reside permanently in Hackney until they are allocated a pitch. This would appear wholly at odds with living a nomadic way of life. Rather than promoting the cultural lifestyle of travellers this policy appears to curtail it.
However, one must not forget the current plight of many travellers; the lack of sites means that the majority of travellers are no longer able to live a nomadic lifestyle and many are forced to either live permanently on sites or, in the worst case scenario, live in houses. Against that background, I do not think that it is unreasonable for authorities to prioritise pitches for those people who are living in their area and who want to live in a caravan but are unable to do so. Their children are likely to be attending schools in the area and it does not seem perverse that those people should be given priority above those who are not.
Clearly the answer is for more sites, but until then I do not think that an authority can really be criticised for accommodating those travellers who live in their area, especially if they are being forced to live in houses rather than caravans.
Interesting decision, I wonder whether living on illegal sites/pitches in the borough will count as residing or having a local connection?
This is a discriminatory decision and entirely illogical. I would like to see this one go up to the ECHR.
While I don’t have a transcript of the decision, it doesn’t appear that this case was run as a challenge under the Convention and so I doubt it will be off to Strasbourg.
In any event, Article 8 doesn’t give anyone the right to a home (and in particular has been held many times does not require member states to provide travellers with homes) and so I don’t think the operation of this policy will engage Article 8 (and therefore the Convention).
I didn’t suggest it was. But if you take the definition of gypsy as persons with a cultural tradition of nomadism or of living in a caravan; and all other persons of a nomadic habit of life, whatever their race or origin, it is somewhat peverse to suggest that only those who give up that nomadic lifestyle, (which remember is crucial to their culture) can be accommodated by Hackney Council. I find that discriminatory, and I know Gypsy’s find it discrimantory. The problem is a succession of failures since the second world war to provide adequate sites, and in particular transitory sites. Perhaps you should go back and have a look at the history of discrimination against Gypsies since that time. There has never been adequate sites and the places they can stay legally have diminished considerably over the last 50 years. They face legal sanctions for stopping most places. Where are they supposed to go?
I don’t mind engaging with your comments, but you should probably read what I’ve written before writing anymore.
1) A case can’t go to the ECHR unless it concerns a victim’s human rights under the Convention. This doesn’t (hence why I said it won’t go to Strasbourg).
2) You will see from my blog post that I am well aware of the lack of suitable sites for travellers and that this is the real problem. You will also see from the post that I accept that it is certainly arguable that this policy inhibits the traditional gypsy way of life. However, that does not mean it is irrational or perverse. That is quite a high hurdle to cross and Hackney’s reasons for having the policy are certainly not irrational.
3) Who is this policy in favour of if it discriminates against travellers? Are you really suggesting that the waiting list is full of people who aren’t travellers? This policy may discriminate against travellers who still live a nomadic lifestyle, but it surely favours travellers who live in Hackney and who want to live on a pitch in Hackney. Very few travellers are actually able to live a truly nomadic way of life these days (as I am sure you are aware of). That won’t be solved by declaring this policy unlawful; the problem is not policies such as these, rather there are not enough sites.
I acted for Mrs McDonagh in this case. I agree that the central problem, of course, is the lack of sites (due to years of failure by central and local government which leaves 20% of the Gypsy and Traveller community statutorily homeless). Article 8 was not argued in this case but I think we may return to that subject in other cases – for example, what if a Gypsy or Traveller would suffer psychiatric harm if forced to move into a house – what happens next?
People may be interested to know that Hackney’s Traveller Site Manager provided evidence that he had known Mrs McDonagh as resorting to the Hackney area for…wait for it…18 years. Not bad for local connection, S?
Mrs McDonagh is not literate. She doesn’t do forms very well though she is very sharp in other regards and did whisper her (correct) prediction of the result of the case in my ear very shortly after the hearing had started. So , on the face of it, Hackney’s procedures may seem fair enough but, on the ground, Hackney knew this Irish Traveller had been trying to find a pitch in their area for nearly two decades and they relied on procedures to deny her claim. When you examine the facts the case leaves, I think, a bad taste. The spot she is currently encamped on (next to one of their official sites) is not problematic (eviction looming probably next week) but Hackney are concerned that Olympics visitors might catch sight of it from passing coaches (that was also in evidence).
Interesting and thanks for the extra information CJ and I’ll be interested to find out in due course how you get on with Article 8. However, I think you’ll need some pretty extreme circumstances to cross the Bernard threshold.
If Hackney had followed government advice that has existed for over 18 years, it would have allocated enough land for Gypsy and Traveller pitches. Its non-compliance with this advice is the cause of the problem suffered by Mrs McDonagh and others. Sadly Hackney seem to be determined to drive her out of its area, so that she becomes some other authority’s “problem”.