Kathleen Slattery v Basildon Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Mr. Justice Arnold,Lord Justice Sullivan |
| Judgment Date | 22 January 2014 |
| Neutral Citation | [2014] EWCA Civ 30 |
| Docket Number | Case No: B2/2013/1160 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2014 |
[2014] EWCA Civ 30
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
His Honour Judge Moloney QC
1BQ00503
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Briggs
and
Mr. Justice Arnold
Case No: B2/2013/1160
Alex Offer (instructed by LESTER MORRILL inc DAVIES GORE LOMAX) for the APPELLANT
Galina Ward (instructed by BASILDON BOROUGH COUNCIL) for the RESPONDENT
Ms. Kathleen Slattery and her (now) fifteen year-old son Roger are members of an Irish Traveller community which, until a partial eviction in October 2011, lived in caravans and mobile homes at Dale Farm, Oak Lane, Billericay, in Basildon District. They were evicted, together with a number of other members of the Traveller community, because their occupation of the relevant part of Dale Farm was in breach of planning control. Following her eviction, Ms. Slattery and her son have continued to live in a caravan, parked adjacent to another part of Dale Farm fully occupied by Travellers in conformity with planning control, but her occupation therefore continues to be unlawful in that sense.
Ms. Slattery's eviction from Dale Farm, after lengthy litigation by members of the Traveller community to resist it, became inevitable following the decision of this court, in December 2008, in Basildon District Council v McCarthy and others [2009] EWCA Civ 13. On 25 th August 2009 she applied to the Basildon District Council for accommodation on the grounds that she and her son were homeless. On 12 th January 2010 the Council offered her accommodation in the form of a three-bedroom house at 71 Norwich Walk, acknowledging that she was eligible for housing assistance, was not intentionally homeless, and was in priority need.
In common with a number of other members of the Dale Farm Traveller community facing eviction, she requested a review of the Council's decision that the accommodation offered was suitable for her, under s.202 of the Housing Act 1996. Common to all those objections was the assertion that any form of 'bricks and mortar' accommodation was inherently unsuitable for them as lifelong Travellers. For Ms. Slattery and her son, it was further argued that the consequences of being accommodated in a house rather than a caravan were so serious as to lead to a real risk of significant psychiatric harm to her and her son. For that purpose she relied upon a report of a Dr. Mark Slater, a consultant psychiatrist with experience of treating Travellers, dated 5 th July 2010.
The council's review panel (Mrs. Claire Last and Mrs. Kathy Ayres) decided that the Norwich Walk house was suitable as temporary accommodation for her, notwithstanding her objections, by letter dated 15 th July 2011 ("the Review Decision"). Ms. Slattery exercised her right to appeal to the county court on a point of law under s.204 of the Act, but it was dismissed by HHJ Moloney QC in the Southend County Court, together with the appeal of another member of the Traveller community, Michael Slattery, in a reserved judgment handed down on 21 st December 2012. The conjoined appeal of a further member of the Traveller community, Ms. Joanne Sheridan, was allowed. Ms. Slattery appeals from the decision against her.
Ms. Slattery's appeal is not the first to have reached this court, by members of the Dale Farm Traveller community, based upon claims that bricks and mortar accommodation is unsuitable for them as Travellers. Three similar appeals were heard together and dismissed by this court on 21 st March 2012 in Sheridan & Others v Basildon Borough Council [2012] EWCA Civ 33 All three of those appellants asserted an aversion to bricks and mortar accommodation. Two of them (Mr. and Mrs. Sheridan) asserted, like Ms. Slattery, a risk of psychiatric harm, relying upon their own reports by Dr. Slater.
This court, in the Sheridan case, had to decide two main issues. The first was whether a cultural aversion to bricks and mortar accommodation, coupled with evidence of resulting psychiatric harm, caused such accommodation to fall below the Wednesbury minimum standard for suitable accommodation. The second was whether it was open to the Council as housing authority to rely upon the absence of any available caravan pitches (as the reason for offering only bricks and mortar accommodation to homeless Travellers) when that state of affairs was arguably the consequence of its own failure to bring such sites forward for use under the powers contained in s.24 of the Caravan Sites and Control of Development Act 1960.
As to the first issue, Patten LJ, giving the leading judgment, said this, at paragraph 49:
"It seems to me that there are no absolute standards to be applied to this issue. There will obviously be exceptional cases where the degree of impairment to the physical or mental wellbeing of the applicant consequent on their being housed in the accommodation will be so serious that nothing can justify it being treated as suitable. R v Brent London Borough Council, ex p Omar (1991) 23 HLR 446 was just such a case involving, as it did, the accommodation of a Somalian refugee who had been imprisoned and tortured in her own country in a filthy, cockroach infested basement flat with high windows and soaking walls. But at the other end of the scale the risk (e.g.) of depression may be slight and the consequences easily contained. It is clear that in Lee Longmore LJ (albeit obiter) did not regard the possibility of psychiatric harm as sufficient to take the accommodation below the Wednesbury line. In principle, I agree with this. If the local authority has no available accommodation in the form of a caravan site it is not, in my view, required to acquire land as part of its duty to provide accommodation for the applicants. As Longmore LJ explains in paragraph 16 of his judgment in Lee, the provisions of s.193 contemplate the performance of the duty using the housing authority's existing resources within a limited timescale. A cultural aversion to bricks and mortar is not enough to make the offer of such accommodation Wednesbury unreasonable even if (as in Mrs Sheridan's case) it may risk bouts of depression. It is reasonable for those to be treated if they occur in just the same way as she has sought and obtained treatment for depression in the past."
On the particular facts about Mr. and Mrs. Sheridan's cases, the court concluded that the risk of psychiatric harm was mainly the consequence of their eviction from Dale Farm, together with their seeking and being offered separate accommodation (since they no longer lived together) rather than a consequence of the offer of bricks and mortar accommodation, rather than caravan pitches. Furthermore, the court found that the review panel had reasonably concluded that ongoing psychiatric disorder could be minimised by reliance upon the services of the NHS.
As to the second issue, after a review of the decision of this court in Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925, this court decided that an arguable failure to exercise its powers under s.24 of the 1960 Act did not disable the Council from relying on the absence of any available caravan pitches. At paragraph 56, Patten LJ said this:
"Although these are powerful points, I am not persuaded that they can be addressed through the medium of a s.204 appeal. It seems to me to be completely unrealistic to expect a housing officer on a s.202 review to conduct a general inquiry into strategic questions about the preparation of a homelessness strategy and the adequacy of site provision. This would require the officer to review the planning policies of the local authority; the history of site provision; the inadequacy or otherwise of decisions taken about the change of use of land from a planning perspective; and the accuracy of its estimates of gypsy and Traveller numbers over the relevant period. These are matters which fall well outside the expertise of a housing officer and would require detailed and probably extensive evidence. I do not accept that Parliament can have intended the review machinery provided by s.202 to encompass an inquiry of that kind. The review must have been intended to have a much narrower focus of whether the offer of accommodation from within the housing authority's existing resources adequately met the applicant's needs."
The Sheridan case was decided after the Review Decision in relation to Ms. Slattery, but before the hearing of her appeal in the Southend County Court by Judge Moloney. He sensibly described the appeals before him as an annex or sequel to the Sheridan case. He concluded that he was bound by the Sheridan case to conclude that the Council were not disabled from relying upon the absence of caravan site accommodation by their alleged failure to exercise their powers under section 24 of the 1960 Act. As to the first of the main issues in the Sheridan case, he asked himself whether the particular facts about each of the three appeals before him brought the appellant's circumstances within the exceptional category where (quoting Patten LJ) the degree of impairment to the physical or mental wellbeing of the applicant consequent upon them being housed in the accommodation will be so serious that nothing can justify it being treated as suitable. On that analysis, he concluded that Ms. Slattery's case fell outside that exceptional category, for reasons which I shall shortly describe.
Ms. Slattery sought permission to appeal to this court on the following three grounds:
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