Basildon Borough Council did not act unlawfully when offering bricks and mortar accommodation to homeless former Dale Farm travellers. So found the Court of Appeal on 21 March 2012 in Sheridan and others v Basildon Borough Council 󞪌] EWCA Civ 335, which also usefully considered the extent of a housing authority’s homelessness duties in this context. Judgment was given by Patten LJ in which the chancellor of the High Court (Sir Andrew Morritt) and Pitchford LJ expressed one-line agreement.

The case concerned former residents of the unauthorised Dale Farm site which was subsequently lawfully cleared. All three appellants (Mr and Mrs Sheridan and their children and Mrs Flynn) were eligible for housing assistance, not intentionally homeless and were in priority need. They were therefore covered by section 193 of the Housing Act 1996 which (per section 193(2)) provides that, unless the authority refers the application to another housing authority, it ‘shall secure that accommodation is available for occupation by the applicant’.

Under section 206(1) a local housing authority may discharge its homelessness functions only as specified. This is by: (a) securing that suitable accommodation which it provides is available; (b) securing that the applicant obtains suitable accommodation from some other person; or (c) providing the applicant with ‘such advice and assistance as will secure that suitable accommodation is available from some other person’. Mr and Mrs Flynn were separated and made separate housing applications rather than be accommodated together.

Since there was no prospect of suitable accommodation being provided by a third party, the council made accommodation offers from within its housing reserve. The applicants were offered conventional bricks and mortar accommodation, but rejected this as unsuitable and sought a statutory review under section 202 of the 1996 act on the sole basis of aversion to such conventional accommodation.

As for Mr Sheridan, a report from a consultant psychiatrist concluded that there would be a significant risk of Mr Sheridan suffering psychiatric harm if forced to accept the accommodation in question and this ‘could amount to a death sentence for him’.

Regarding Mrs Sheridan, the report indicated the possibility that ‘her distress about what she would see as an impossible situation might drive her to deliberately harm herself’, albeit not with fatal intention.

Section 193 duty

The court noted that previous legislation dealing with the needs of gypsies and other travellers gave authorities no powers to override normal planning procedures. Similarly, the 1996 act is not legislation specifically designed to cater for the needs of gypsies and travellers. It contains ‘general statutory powers and duties designed to deal with the problems of homelessness’ and (per section 193) those having a priority need. As Patten LJ noted, section 193 (when read with section 206) requires ‘suitable accommodation’ to be made available to the eligible applicant. ‘Suitable’ means suitable as accommodation for the person to whom the duty is owed.

Relevant case law principles

The court noted various principles and approaches developed by the courts where (as at present) ‘the challenge to the suitability of the accommodation is not directed to the standard of the accommodation but to its type’. For instance, in Codona v Mid-Bedfordshire District Council 󞪄] EWCA Civ 925, the applicant was also a gypsy who refused conventional bricks and mortar accommodation. On the issue of whether a present lack of available land for use as a caravan site should be taken into account in deciding whether the bricks and mortar accommodation offered to Mrs Codona and her family was suitable, Auld LJ (among other things) noted from relevant case law and otherwise that:

• ‘…suitability has to take account of practicality. There is no point in… [an] authority being required to provide sites which do not exist’.
• ‘…suitability is not itself an absolute concept. It may have various levels, though there is a Wednesburyminimum depending on the circumstances of each case, below which it cannot fall’.
• Although financial constraints and limited housing stock can be taken into account in determining suitability (per Collins J in R v Newham LBC, ex parte Ojuri (No 3) 󞩾] HLR 452): ‘There is a minimum and one must look at the needs and circumstances of the particular family and decide what is suitable for them, and there will be a line to be drawn below which the standard of accommodation cannot fall.’
• If the accommodation falls below that line, and is accommodation which no reasonable authority could consider to be suitable to the needs of the applicant, then the decision will be struck down, and an appeal to the resources argument will be of no avail (see Dyson J in R v Newham London Borough Council, ex parte Sacupima and others (26 November 1999)).
• Where a local housing authority is shown to be doing all it could, ‘the court would not make an order to force it to do the impossible’.
• Suitability should be regarded as an elastic concept, with Wednesbury marking the line below which no reasonable authority could consider accommodation to be reasonable.
• Per the 18 January 2001 decision of the European Court of Human Rights in Chapman v UK (App No 27238/95): ‘The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at decisions in particular cases.’
• According to Newman J in R (Margaret Price) v Carmarthenshire County Council 󞪃] EWHC 42 (Admin): ‘In order to meet the requirement to accord respect, something more than “taking account” of an ­applicant’s gypsy culture is required. As the court in Chapman stated, respect includes the positive obligation to act so as to facilitate the gypsy way of life, without being under a duty to guarantee it to an applicant in any particular case.’
• Again, per Price, article 8 (right to respect for private and family life) of the European Convention on Human Rights does require an authority to carefully examine a gypsy’s claim for special consideration and, if satisfied that it is genuine, whether in all the circumstances it should attempt to meet it and if so how.
• However, if despite such consideration (including appropriate and genuine ‘consideration of ways and means of meeting the gypsy’s claim’), a failure to provide a caravan site or pitch would only breach statutory duty (section 193) or article 8 if the offer fell below the Wednesbury minimum line.
• Consequently, where suitable land is not available to meet traveller requirements, ‘it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind, providing that it satisfies the Wednesbury minimum line of ­suitability’.

Patten LJ also noted from the judgment of Longmore LJ in Lee v Rhondda Cynon Taf County Borough Council 󞪈] EWCA Civ 1013 that, since homelessness applications are expected to be determined within a short timescale using existing resources, and since acquiring a new caravan site will involve potentially lengthy planning processes, to expect a housing authority to do so where appropriate in the discharge of its homelessness duty would be inconsistent with the promptness and otherwise required by the relevant statutory scheme.

Potential psychiatric harm

But what of potential psychiatric harm in respect of the homeless applicant? Patten LJ considered that a cultural aversion to bricks and mortar is ­insufficient to make such an ­accommodation offer Wednesburyunreasonable even if it may risk bouts of depression. In relation to Mrs Sheridan, 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’. His lordship said that the physical separation of Mr and Mrs Sheridan is the inevitable result of their lawful removal from Dale Farm, ­coupled with their decision not to seek joint accommodation as a single family unit. Given that the risk of psychiatric harm was an existing problem which would not be avoided within the terms of their separate accommodation applications, it was not Wednesburyunreasonable for the council to ­proceed on the basis that the ­psychiatric problems should be dealt with through use of local NHS services.

Available sites

The complaint was that, since the council had consciously chosen not to make adequate site provision for ­gypsies and travellers within its area, it could not rely on the absence of ­available sites as a relevant factor in assessing the suitability of offered accommodation.

Nevertheless, while Patten LJ acknowledged that the points raised were ‘powerful’, he was not persuaded that this could be addressed through a homelessness appeal to the county court (section 204 of the Housing Act 1996). For it would be ‘completely unrealistic’ for a housing officer on a section 202 review to conduct a ­general inquiry into homelessness strategy and the adequacy of site ­provision. This would involve matters outside housing officer expertise and would require detailed and probably extensive evidence. The review must have been intended to have a much narrower focus of whether the accommodation offer from within the authority’s existing resources adequately met the applicants’ needs. The court, also on the evidence, accepted that the council had taken the necessary reasonable steps to identify a possible site or sites on which the appellants could live in their caravans.

In the circumstances and on the evidence, the Court of Appeal found no error of law in the council’s relevant decisions and therefore dismissed the appeals.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors