R and Others v The Secretary of State for Work and Pensions The Secretary of State for Communities and Local Government (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom: |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 19 (Admin) |
| Docket Number | Case Nos: CO/120/2012 and CO/123/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 January 2013 |
[2013] EWHC 19 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case Nos: CO/120/2012 and CO/123/2012
Marc Willers and Desmond Rutledge (instructed by Keoghs Nicholls Lindsell & Harris) for the Claimants
James Strachan (instructed by the Treasury Solicitor) for the Defendant
The Interested Party not appearing.
Hearing dates: 20-21 November 2012
THE HON MR JUSTICE HICKINBOTTOM
Introduction
The Claimants are Romani Gypsies, who live in caravans on a private site.
Although the legislative scheme is complex – and this case inevitably involves some consideration of its detail – in short, the Claimants' complaint is that the occupier of a caravan who is entitled to full Housing Benefit ("HB") and who is on a site owned by a local housing authority receives an HB rent rebate of the whole of the rent charged; but, if the caravan is on a private site, then the rent on which HB can be claimed is subject to determination by a rent officer, and that is normally substantially less than the full contractual rent charged. It is said that that scheme therefore fails to meet the essential housing needs of Gypsies on private sites, who have particular site infrastructure and management needs – which result in additional costs, and hence a legitimately higher rent, not reflected in the HB awarded. Consequently, in the medium to long term, they are placed in a position whereby they will be unable to remain on the site, and will be unable to carry on their traditional way of life. It is contended that the scheme, and decisions affecting the Claimants made under the scheme, are therefore discriminatory, and in breach of article 14 of the European Convention on Human Rights, when read with article 1 of the First Protocol 1 (the right to property) and article 8 of the substantive Convention (the right to respect for family and private life).
After some considerable fluctuations during the course of these proceedings, that human rights claim is the only ground the Claimants now pursue.
At the substantive hearing of the application for judicial review before me, Marc Willers and Desmond Rutledge, both of Counsel, appeared for the Claimants; and James Strachan of Counsel for the Secretary of State. I am grateful to them all for their assistance.
Gypsies and Travellers
Romani Gypsies are descended from migrants who travelled to Europe from India several hundred years ago, with a preference for self-employment, mobility and an unorthodox lifestyle. They have from time-to-time been the subject of persecution and public hostility, which encouraged a nomadism that also took advantage of seasonal work. For the last 25 years (since Commission for Racial Equality v Dutton [1989] QB 783), they have been recognised as a distinct ethnic group; as have, subsequently, other nomadic minorities including Irish Travellers ( O'Leary v Allied Domecq (2000) Case No CL 950275–79). As a matter of domestic law, Gypsies and Travellers are recognised as having a protected characteristic under the Equality Act 2010; and it is now well-established that, by virtue of the European Convention on Human Rights, the state has a duty to "facilitate the gypsy way of life" for ethnic Gypsies and Travellers ( Chapman v United Kingdom (2001) EHRR 18, especially at paragraph 96), which way of life requires "special protection" ( DH v Czech Republic (2008) 47 EHRR 3, especially at paragraph 182).
At common law, it was lawful for these nomadic peoples to stop and stay on common land. However, the Caravan Sites and Control of Development Act 1960 gave local authorities power to close commons to Gypsies and Travellers (section 23), with a concomitant power to open sites to cater for caravans so displaced (section 24). In practice, authorities exercised the former power, but not the latter; with a resulting lack of lawful sites. The Caravan Sites Act 1968 sought to address this problem by imposing a duty on councils to make adequate provision for Gypsies and Travellers in their area. In rural areas, that duty fell on county councils rather than district councils. About 300 council sites were established as a result, including a site owned and operated by Lancaster City Council ("the Council") at Mellishaw Lane, Morecambe.
However, that duty was abolished by the Criminal Justice and Public Order Act 1994, which, driven by a policy of privatisation, sought to encourage Gypsies and Travellers to make provision for themselves. Planning Policy Guidance and Circular 1/94: Gypsy Sites and Planning and 18/94: Gypsy Sites Policy and Unauthorised Camping, issued under the Town and Country Planning Act 1990, imposed an obligation on local authorities to carry out a quantitative assessment as to how many sites were required in their area and then identify land to meet that assessed need. But, that too was ineffective: as I understand it, no local authority made the required assessment of need, let alone identified land that might meet any such need. Some Gypsies and Travellers applied for planning permission for their own sites; but, generally, no further site provision was made, and the number of Gypsies and Travellers having no legal place where they could lawfully pitch their caravans increased.
With a view to making the scheme effective, Circular 01/2006: Planning for Gypsy and Traveller Sites required local planning authorities to assess the need for sites in their area and report that need to regional planning bodies, which were to dictate how many pitches each local authority should site and identify sufficient land to meet that need. That regional strategy worked, at least to an extent: every local authority assessed their respective need for sites, and reported accordingly to their relevant regional body.
However, on 29 August 2010, the Secretary of State for Communities and Local Government announced the Government's intention to withdraw that Circular, and replace it with "a new, short, light-touch, single Planning Policy Statement for traveller sites… to provide a fair deal for traveller communities and settled communities" (Planning for Traveller Sites: Consultation Paper (April 2011), paragraphs 1.2 and 1.3). The Localism Act 2011 swept away the regional tier, and gave control of assessment of need in terms of number of pitches, and identification of land to meet that need, to local authorities themselves. The April 2011 Consultation Paper did nevertheless recognise a number of specific problems faced by Gypsies and Travellers, including "unmet accommodation needs (with insufficient appropriate authorised public site provision) …" (paragraph 2.15); and said that, "Private development and ownership of traveller sites is a key component in meeting requirements…" (paragraph 2.13).
The Consultation Paper (at paragraph 2.4) also noted the changing nature of living for Gypsies and Travellers. They are culturally averse to living in bricks-and-mortar, wanting to live in a caravan or mobile home, but most now live on permanent residential sites:
"Although some Gypsies and Travellers travel for some of the year, the vast majority do not now travel on a daily basis all year round. Increasingly, as traditional seasonal work has declined, Gypsies and Travellers have adapted to permanent residential sites where they can more easily access a doctor, schools and other services and employment while maintaining the cultural traditions of being a Gypsy or Traveller…".
Those characteristics are reflected in the definition of "gypsies and travellers" in the HB scheme. Paragraph 3(4) of Schedule 2 to the 2006 Regulations (as defined below) defines that term as follows:
"(a) persons with a cultural tradition of nomadism or of living in a caravan; and
(b) all other persons of a nomadic habit of life, whatever their race or origin, including –
(i) such persons who, on grounds only of their own or their family's or dependant's educational or health needs or old age, have ceased to travel temporarily or permanently; and
(ii) members of an organised group of travelling show people or circus people (whether or not travelling together as such)"
Housing Benefit: The Statutory Scheme
HB is a non-contributory, earnings-related benefit, designed to assist those with low incomes with rent and analogous payments that they are liable to pay on the dwelling they occupy as their home.
The rationale for the benefit is set out thus in paragraph 1.9 of "Retrospective Equality Impact Assessment for Housing Benefit and Council Tax Benefit", a document published in 2010 by the Welfare and Wellbeing Group of the Department for Work and Pensions:
"Since its introduction in 1983, [HB] has provided vital help to enable families on low incomes to afford decent housing. It is a stand-alone benefit, designed and administered separately from other benefits and is paid to people on low income to help them meet the costs of their rent. It is available to tenants renting their homes but does not provide help with mortgage costs or non-rent related housing costs. Eligibility for [HB] may be determined by receipt of certain qualifying benefits or may be paid to people with some limited amount of savings or who work but have a low income. [HB] performs three important functions:
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