England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 February 2012

1. MR JUSTICE KENNETH PARKER: This is an application for judicial review brought by Mrs Anne McDonagh, who challenges the policy of the defendant, the London Borough of Hackney ("Hackney") in respect of the allocation of pitches on sites authorised and designated for use by the travelling community.
2. Mrs McDonagh is an Irish traveller and she travels with her two youngest children, Shirley (aged 18) and Donna (aged 15). She is now aged 56 and she suffers from high blood pressure, asthma, arthritis and heart problems. Because of her ill-health and because of the difficulty of staying in an authorised area, she has for a long time been seeking an authorised pitch in the Hackney area.
3. She shows in her witness statement how she has had strong links with Hackney since 1982. She has, however, still not secured a pitch on an authorised site in Hackney, and she feels (which is understandable) a sense of grievance about her lack of success.
4. Initially this claim had two strands: a challenge to a decision taken by Hackney under section 77 of the Criminal Justice and Public Order Act 1994 on the grounds that Hackney wrongly fettered its discretion in taking that decision; and did not consider other options that might have been open to it. Cranston J, after an oral hearing, refused permission to pursue that ground. Mr Timothy Jones, who appeared on behalf of the claimant and presented his case forcefully, wisely did not seek to pursue that aspect. For the avoidance of doubt, he would have faced, in my judgment, insurmountable obstacles if he had sought to do so.

The relevant policy

5. This is set out in a document of 2008 entitled "Policy for letting pitches on Hackney traveller sites". It states:

"Introduction

Hackney Homes manage 5 Travellers sites with a total of 26 plots/pitches.

We expect to have no more than 1 plot/pitch available per year on average. This means that some years there will be no vacancies at all.

Inevitably, this shortage means that when a pitch does become available there is extreme concern and interest in how the decision to select a new resident for the pitch is made.

This policy document proposes a policy that will guide these decisions and make the process simpler and more transparent. We have discussed the options and taken notice of opinions expressed by Travellers themselves, and consulted with colleagues in Education and the London Gypsy Travellers Unit.

Objectives

The Council wishes to have a lettings policy for Travellers sites that is based as much as possible on the same principles as its general lettings policy.

It wants it to be

• Fair and non discriminatory

• Open and easy to understand

• Easy to manage (no complicated points system)

• Supports staff and existing residents in keeping the sites safe and good place to live.

• Fits in with other Council policies and duties.

It is proposed that these rules will be broadly the same as for the general lettings policy:

• The waiting list will be held in date order from the date on the application form

• Everyone on the list must live the borough. Where people are forced out of the borough through lack of anywhere to stay, they can stay on the list only as long as they are still using an address in Hackney as c/o for benefits (e.g. Child Benefit) and schools etc

• People will be told in writing if it is decided that they will be stopped joining the list (or remain on it) because they are not living in the borough.

• People wishing to join or remain on the list must agree that information they provide to other parts of the Council (e.g. Housing Benefit claims and Education) or to other statutory bodies (e.g. hospitals, clinics, GP's and probation service) can be shared to check that the application is true (but for no other reason)

• Having decided that any person is able to apply as they live in the borough, the Travellers Team will then consider whether the person should be stopped joining the list because of rent/licence/charges owing or anti social behaviour, or because they have made a fraudulent application. The Council must consider in particular whether any incidents of anti social behaviour that have been identified might lead the Council reasonably to conclude that the person/people concerned posed a threat to other residents on the sites. Concerns about ASB will focus on incidents involving violence or threats of violence and other intimidation.

• Where there is money owing to the Council for rent/licenses or charges for any type of housing, the person concerned must make an arrangement for a weekly amount to be repaid and keep to this for at least 6 months before they can be considered for joining the waiting list. Lump sums are nice but it is a long term commitment to repay that needs to be demonstrated. Where debts are very large the Council may decide that a longer period than 6 months is required.

• Where there have been specific incidents of ASB people will have to demonstrate what steps they have taken in order prevent any such incidents happening again

• Reasons for refusing to accept anyone on to the list will be provided in writing by the Travellers Team within 4 weeks of the date of the application or of the annual re-registering in January.

• An appeal against this decision will be considered on request and will be considered by 2 managers from outside the Travellers Team

• Information to support an appeal can be from the person concerned or anyone acting on their behalf but must be in writing

• Standard registration must be renewed every year by the end of January and at this time checks will be made again and people currently on the list may be excluded if they no longer qualify, but there will be an appeal process as above

• Application will go on the Council computer system to crosscheck for existing applications and tenancies

• Checks will be made on size of family and local and family connections

• 4 of the following documents will be required to demonstrate local connection and details of who is in the family:

O child benefit book/s

O letter from school/s attended by any children

O any state benefit/s books with address

O clinic card for health visitor etc

O confirmed address of close family member/s in Hackney (parents, sisters brothers or adult children only)

O DVLA documents

O National Insurance Number

O Post Office/Giro/Bank Account

O Utility bills e.g. electricity, mobile telephone

The following are things that will no longer be considered when allocating pitches

• Statutory homelessness: emergencies have to be dealt with by the Council's homelessness service.

• Physical health problems: living on a site is a choice about how you live it's not about meeting a particular health need.

Transfers and exchanges

The Council reserves the right to use a vacant pitch to resolve a demonstrable management need to transfer an existing resident (for example where a large pitch becomes vacant, this could be used to relieve overcrowding on another pitch by transferring an existing resident) as long as the resulting vacancy also meets the needs of the new applicant at the top of the waiting list.

Nothing in this agreement prevents existing residents from exchanging pitches to achieve a better 'fit' for each resident household as long as these are achieved through mutual agreement and authorised by the Council.

As with mutual exchanges within the general rented stock, the Council reserves the right not to authorise exchanges where there are existing breaches of tenancy or where there is reason to think that the result of a proposed exchange is likely to make the safe and effective management of the site more difficult to achieve.

The Council will provide reasons for a refusal to agree an exchange in writing to both residents concerned, who may appeal in writing if they are not satisfied with the explanation provided. This appeal will be considered by 2 managers from outside the Travellers Team."

The particular circumstances relating to the claimant

6. There is a witness statement in these proceedings from Mazhar Khamkar, who is the Hackney Homes Traveller Site Manager employed by the Arm's Length Management Organisation, which has responsibility for the conduct of this part of Hackney's public administration. He has been employed as the Traveller Site Manager since October 1992. He has in fact known Mrs McDonagh for approximately 18 years.
7. In December 1994 Mrs McDonagh and three of her children were granted permission by the Council to stay at her mother's address, 14 Waterden Crescent, which was a permanent travellers' site. At the time her mother, who was living at 14 Waterden Crescent, had two grown daughters and two sons living with her.
8. On 18 December 1995 Mrs McDonagh put her name on the traveller site waiting list. At that time the waiting list operated on a different system, namely a points system with points awarded according to various criteria. When a pitch became vacant on a traveller site, the site management would write to everyone on the waiting list, asking for any further information to be considered, before allocating a vacant pitch based on the number of points given.
9. Mrs McDonagh's name remained on the list until 2003. At that time, states Mr Khamkar, there was no forwarding address given by Mrs McDonagh.
10. In 2004 the Council changed its letting policy for traveller sites. The site management wrote to everyone on the old waiting list, and once they replied, their details were added to a new waiting list with the date of their original application. Mrs McDonagh did not provide a forwarding address or c/o (care of) address, and site management were informed by relatives that they did not have an address for her. Because of her failure to renew her application, her name was taken off the waiting list.
11. The process of changing the letting policy took more than a year. There was extensive consultation, including with travellers living on permanent sites, unauthorised encampments and travellers living in houses. In any event, in 2009 Mr Khamkar and the Hackney Homes Travellers' Officer visited the unauthorised site at Mabley Green and met Mrs McDonagh and her husband, whom she travelled with. At that time Mrs McDonagh asked if she was on the waiting list, and she was told that as she did not reapply to go on the waiting list in 2004, her name had been taken off. According to the statement of Mr Khamkar, the Travellers' Officer, Mrs Angie Emmerson, explained to Mrs McDonagh about the new letting policy and also gave her the literature regarding the policy. Apparently an appointment had been made for Mrs McDonagh to visit the office to put her name on the waiting list, and she was told about the documentation needed to show that she had a c/o address in Hackney.
12. It is said that the officers would have spoken to Mrs McDonagh, asking her to attend the office to get her name on the waiting list, and after several attempts, on 7 April 2009, Mrs McDonagh did visit the office to put her name down. She gave No 3 Abbey Close as her c/o address, but apparently there was no documentation to substantiate this at the time. As there was not sufficient documentation, a letter was written to Mrs McDonagh on 28 May 2009 in the following terms:

"I regret to inform you that you have been unsuccessful in your application as you do not meet any of the criteria set out in the Letting Policy for Travellers Site in Hackney. However, you can apply again if your circumstances change and if you have further evidence of living in Hackney."

13. The wording of the letter can perhaps be criticised as somewhat inapposite, in that it suggested that Mrs McDonagh simply failed to come within the criteria, whereas it is accepted that the failure, if any, was to provide the documentation necessary to show that the criteria had been satisfied, and it has been suggested, and I think with some force, that had the position been set out in terms in that way, some confusion and delay might have been avoided.
14. In any event, on 10 June 2009 - this of course is some time considerably later - a fax was received from Geraldine Lindsay, working for the London Gypsy and Traveller Unit dated 7 April 2009, which did provide evidence of Mrs McDonagh's address. It appears from the background circumstances that the documentation for submission had probably been prepared at an earlier point, but it appears, at least on the face of the documents, that the material was not submitted until 10 June 2009. It is not possible to say that with absolute confidence, because it may be that there was an earlier submission that has somewhere gone astray.
15. It is said by Mr Khamkar that on 17 June he wrote to Mrs McDonagh informing her that her application was successful and that she would have to renew it every year in January. Mr Khamkar produces as an exhibit to his witness statement a copy of that letter, so it does appear from the evidence that Hackney did intend to send a letter of that nature. Nonetheless, Mrs McDonagh strongly contests the receipt of that letter, and raises an issue as to whether in fact the letter was duly dispatched at the time. I have no real reason to doubt that a letter of that kind was dispatched, but again something may have gone wrong in relation to the receipt of the letter and its communication to Mrs McDonagh. However, this is not an issue for the purposes of these proceedings that I need to resolve.
16. In the event, Mrs McDonagh did not renew her application by 31 January 2010. Letters were sent to her at her c/o address asking her to renew the application. On 7 April 2010 Geraldine Lindsay from the London Gypsy and Traveller Unit sent Mr Khamkar an e-mail stating that she had spoken to Geraldine McDonagh from 3 Abbey Close. Geraldine is Mrs McDonagh's daughter-in-law, and that was the address used as the c/o address for present purposes.
17. Her name, in default of her failure to renew, was deleted from the waiting list on 30 April 2010. However, Mr Khamkar says that in March 2011 he visited the camp and informed Mrs McDonagh that her name had been taken off the waiting list and that she had to register again. On 11 March 2011 he helped Mrs McDonagh to complete her application form, which resulted in her being placed back on the waiting list. At the same time he reminded her that she had to renew her application every year by 31 January. If she failed to renew her application, Hackney would write to her by February to remind her that she needed to renew or her name would be taken off the waiting list.

The claimant's submissions

18. Mr Jones referred me to a number of documents with a view to showing, first, that travellers were a particularly vulnerable part of the community, who suffered considerable disadvantages in terms of, for example, health, education and welfare; and secondly, that local authorities generally, and Hackney in particular, had over a very substantial period failed to provide anything approaching an appropriate number of authorised and designated sites and pitches for travellers, contrary to what was expected of them by relevant legislation and guidance. He relied, for example, on relevant passages from Hackney's own document, entitled "A strategy for gypsies and travellers", and to Government guidance, in particular DoE Circular 1/94 and ODPM Circular 1/06.
19. The special position of travellers is accepted by the defendant, and the alleged failure referred to, at least for the purposes of the present claim, is not sought to be controverted. In essence, submitted Mr Jones, given that special vulnerability and public authority failure, Hackney's policy was irrational because it unfairly prejudiced travellers who were in the position of Mrs McDonagh, namely who had been driven from Hackney and who had been unable, despite demonstrable connection with Hackney, to secure and retain a place on the waiting list, and to receive treatment commensurate with the merits of their individual circumstances. The facts, he broadly put forward, spoke for themselves.
20. Mr Jones accepted, in my view correctly, that Hackney was entitled to have a requirement that to be admitted to the relevant waiting list an applicant needed a demonstrable connection with Hackney, and that, in principle, a resident's qualification was not unreasonable. However, he contended that the specific criteria to show that connection were arbitrary, and in certain cases unduly burdensome, especially for those who might not be able to read and write - a disadvantage well-known to exist in the travelling community.
21. It was necessary for Mrs McDonagh to produce or arrange for the production of specific documentation to register initially under the policy adopted in 2004, assuming that she knew at all of the change in policy which she in her statement said she did not; and then to take active steps to secure her continuing registration on the waiting list by again producing or arranging the production of specific documentation.

Discussion

22. In my judgment, it is important not to lose sight of the legal issue in this claim. The issue is not whether a superior set of criteria could be devised or whether the administrative processes could be improved. In most instances where a scarce resource is to be rationed - here authorised pitches for travellers - competing criteria and procedures are typically open, and the eventual policy selected is likely to carry advantages and disadvantages depending on the individual circumstances of those affected. The process of consultation, which was of course followed here, frequently reveals where the acceptable consensus lies and may be a powerful influence on the final choice.
23. The general approach of the court in cases of this kind is well illustrated by the R(Ahmad) v Newham London Borough Council [2009] UKHL 14; [2009] HLR 31. In that case the House of Lords rejected a rationality challenge to a housing allocation scheme maintained by the defendant authority pursuant to section 167 of the Housing Act 1996. That section identified a number of categories of applicants to which a reasonable preference was to be given. The defendant scheme, which gave potentially decisive weight to how long an applicant had been on the waiting list, was found to be unlawful at first instance and in the Court of Appeal.
24. In allowing the defendant's appeal, members of the appellate committee referred to the difficulties inherent in a challenge to such an allocation scheme:

"15. Fifthly, even if the scheme is not unlawful because it fails to comply with section 167(2), is it unlawful because it is irrational? The earlier decisions in the High Court and Court of Appeal, culminating in R (A) v Lambeth London Borough Council [2002] EWCA Civ 1084, [2002] HLR 998, concluded that a policy was irrational if it did not contain "a mechanism for identifying those with the greatest need and ensuring that so far as possible and subject to reasonable countervailing factors (for example, past failure to pay rent etc) they are given priority" (para 18). There are numerous problems with that approach. The Act only requires a "reasonable preference" to be given to particular groups of people. It cannot be said that a scheme for identifying which individual households are in greatest need at any particular time is the only way in which a reasonable council might decide to give reasonable preference to those groups. It is the groups rather than the individual households within them which have to be given reasonable preference. Identifying the individual households in greatest need could only be done through some sort of points based system and experience has shown that these too may be open to attack, either on the ground that they are too rigid and therefore unduly fetter the council's discretion or on the ground that the particular distribution of points is for some reason irrational: see R v Lambeth London Borough Council, ex p Ashley (1996) 29 HLR 385; R v Islington London Borough Council, ex p Reilly and Mannix (1998) 31 HLR 651; and R v Tower Hamlets London Borough Council, ex p Uddin (1999) 32 HLR 391. The trouble is that any judicial decision, based as it is bound to be on the facts of the particular case, that greater weight should be given to one factor, or to a particular accumulation of factors, means that lesser weight will have to be given to other factors. The court is in no position to re-write the whole policy and to weigh the claims of the multitude who are not before the court against the claims of the few who are. Furthermore, relative needs may change over time, so that if the council were really to be assessing the relative needs of individual households, it would have to hold regular reviews of every household on the waiting list in order to identify those in greatest need as vacancies arose. No-one is suggesting that this sort of refinement is required. It would be different, of course, if the most deserving households had a right to be housed, but that is not the law.

16. Sixthly, therefore, the question is how broad the brush can be. One can, of course, imagine policies that would be irrational. It is dangerous to give examples which have not been tested by argument. But one possibility might be a policy which ensured that small families had priority over large ones, or that people coming from outside the borough had priority over those living within it, or that people who had been waiting the shortest time had preference over those waiting the longest. But it is not irrational to have a policy which gives priority to some tightly defined groups in really urgent need and ranks the rest of the "reasonable preference" groups by how long they have been waiting. These definitions are of course open to criticism, and no doubt when the council come to rewrite their policy they will give careful thought to the points which have been made in these proceedings, but it is not for the courts to pick detailed holes in the definitions which the council have chosen. Section 167(6) makes it clear that, subject to the express provisions, it is for the council to decide on what principles the scheme is to be framed.

...

22. It is fitting to conclude by endorsing these words of the Deputy Judge (para 49 of his judgment):

"It is apparent that all judges considering this problem have stressed that it is for the local authority to provide an allocation scheme according to its Part VI duty, and the merits as to who, how and when priority should be afforded is a matter for the local authority subject to its special duties. Judges must be particularly slow in entering the politically sensitive area of allocations policy by over-broad use of the doctrine of irrationality. A particular scheme cannot be castigated as irrational simply because it is not a familiar one to the court or is not considered to be the perfect solution to a difficult, if not impossible, question to resolve."

Castigating a scheme as irrational is of little help to anyone unless a rational alternative can be suggested. Sometimes it may be possible to do this. But where the question is one of overall policy, as opposed to individual entitlement, it is very unlikely that judges will have the tools available to make the choices which Parliament has required a housing authority to make.

...

46. Fifthly, as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that Judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.

...

55. This is not to say that there could never be circumstances in which a scheme, which complies with the statutory requirements, could be susceptible to judicial review on grounds of irrationality. Such a suggestion would be unmaintainable not least because it would represent an abdication of judicial responsibility. However, what is important is to emphasise that once a housing allocation scheme complies with the requirements of section 167 and any other statutory requirements, the courts should be very slow to interfere on the ground of alleged irrationality. In this connection, it is right to say that I am in complete agreement with the views so well expressed by my noble and learned friend, Baroness Hale of Richmond in paras 11 to 16 of her opinion, which I have seen in draft."

25. The demands of effective administration are also relevant, see the observation of Lord Scott in Ahmad at paragraphs 4-6 and Lord Neuberger at paragraph 51.
26. I accept that the specific context in Ahmad was different. Nonetheless, the case at its core involved a challenge to a policy that was designed to ration a scarce resource, in which there would be competing arrangements and potential winners and losers whatever policy was chosen, a situation commonly called "polycentric" in the academic literature following Professor Fuller's first use of that expression. The general approach indicated in the case is therefore appropriate in the present context.
27. For my part, I discern no irrationality in the starting point of Hackney's policy that requires a residential connection with the borough, nor in the requirement that residence must be contemporary, in the sense that the traveller can show either continuing physical presence, or that the traveller has retained a c/o address in the borough. It must make sense to afford priority to those who are in fact living in Hackney, or who have lived there and have retained a firm point of contact with Hackney.
28. I should make clear that these observations are not intended to be prescriptive, and I fully recognise that other arrangements could be made, other criteria followed, other than those in the present policy, and that that can be done quite lawfully.
29. Nor, in my view, is it irrational to require that registration on the list must be renewed. Given the small number of pitches and the intense competition for the few pitches that do become available, it is essential that those on the list have a continuing interest and continue to meet the criteria. Without an effective sift of that nature, the list could well become unmanageable and would retain on it those who either had no serious interest in securing a pitch in Hackney, or who had far inferior claims in terms of connection with Hackney. A policy that neglected that requirement might indeed be vulnerable to a challenge on the grounds of irrationality.
30. I fully recognise, as stressed by Mr Green, that some travellers might well find it burdensome to re-register each year and to keep abreast of any changes in relevant policy, especially those relating to allocation criteria. If a traveller is not able to read and write, as is the case with the claimant, there may be special difficulties in effectively communicating from both sides. However, I am not persuaded that such difficulties, which can potentially lead to unfortunate consequences, vitiate the policy as a whole. The traveller may take appropriate steps to ensure, so far as is practicable, that the person at the c/o address is responsible and is aware of the relevant policy, and is alert to the need for re-registration. The traveller may put in place arrangements by which such person either herself provides the necessary documentation, or takes steps to remind the traveller of what is needed so that the latter can herself take the necessary steps. From the evidence in the case, it is clear that the traveller can attend the Council offices to re-register in person, or to get someone to do that for her, provided the documentation is provided - an extra facility that gives some degree of flexibility to the administrative arrangements.
31. In this case Mrs McDonagh had a c/o address with her daughter-in-law, and I have no reason to doubt that her daughter-in-law intended to give Mrs McDonagh such assistance as was required to secure continuing registration on the waiting list. However, something did go wrong, even assuming that best endeavours were exercised. However, even if other criteria were adopted, administrative procedures would be necessary, and these procedures inevitably carry cost - in some instances of unjustifiable amounts - and are equally prone to mistake, error and worse.
32. Notwithstanding the points urged by Mr Jones about vulnerability and the general circumstances in which travellers are likely to find themselves, I am satisfied that the administrative procedures that have been established to give effect to the policy are reasonable, fair and not unduly burdensome. They are procedures that travellers, notwithstanding their particular circumstances, can reasonably be expected to follow.
33. For those reasons, I hold that the policy is not an irrational one and is lawful in law. Therefore, I dismiss this claim for judicial review.
34. MR GREEN: My Lord, in that event I seek the typical order against a publicly funded party: that the claimant pay the defendant's costs, to be assessed pursuant to section 11 of the Access to Justice Act 1999.
35. MR JUSTICE KENNETH PARKER: I do not think you can resist that.
36. MR JONES: I cannot argue against that. The claimant has been legally aided throughout with a nil contribution.
37. MR JUSTICE KENNETH PARKER: Thank you very much, both of you, for your very helpful and succinct submissions. I am most grateful.
38. MR JONES: My Lord, I apologise for intervening, I have to ask for detailed assessment of costs, I apologise.
39. MR JUSTICE KENNETH PARKER: Certainly.