Lee v Rhondda Cynon Taff County Borough Council

A housing authority dealing with a homeless Gypsy applicant must consider the applicant’s cultural and accommodation needs. It must carefully examine whether a genuine claim requires special consideration and what ways and means may meet it. It was arguable that this could include considering whether to acquire a caravan site under the Caravan Sites Control and Development Act 1960, particularly where there was no pressure of time. Conventional bricks-and-mortar accommodation may be sufficient where no pitch is available, provided it meets the Wednesbury minimum line of suitability. Article 8 special consideration may require greater effort than generic guidance suggests.

This was a renewed application for permission to appeal against Mr Recorder Keyser QC’s dismissal of an appeal concerning the suitability of accommodation offered under the Housing Act 1996. The appellant, a Romany Gypsy living in a caravan on an unauthorised site, argued that a flat was culturally unsuitable and that the authority should have considered providing or acquiring a caravan site. The central issue was whether the authority had properly examined all ways and means of meeting her accommodation needs, including the exercise of its statutory acquisition power and the implications of Article 8.

The renewed application for permission to appeal was granted. The proposed grounds disclosed a real prospect of success, meaning a prospect that was not fanciful.

1. Scope of the duty. The court proceeded on the basis that the authority’s duty was to consider the needs of Gypsies as an ethnic group. It was not necessarily an automatic duty to facilitate the Gypsy way of life or provide a caravan site.
2. Ways and means. Codona v Mid-Bedfordshire DC [2005] HLR 1 established the relevant framework: the authority must carefully examine a genuine claim for special consideration and consider whether, and how, it should be met. It was arguable that, in a case without the pressure of time present in Codona, this examination could include considering whether to acquire a site under section 24 of the Caravan Sites Control and Development Act 1960. Failure to consider that possibility could mean that the statutory duty had not been discharged.
3. Alternative accommodation. Where land was unavailable or could not readily be made available, bricks-and-mortar accommodation could discharge the duty if it satisfied the Wednesbury minimum line of suitability. That line could vary according to the expected duration of occupation.
4. Guidance and Article 8. The court considered the criticism in Codona that Article 8 special consideration required more effort than suggested by the final sentences of the English guidance. The same wording appeared in paragraph 18(40) of the Welsh Code of Guidance. It was therefore arguable that the guidance required reconsideration and that the authority’s decision might have failed to reflect the necessary level of enquiry.
5. Directions. The appeal was to be heard as soon as conveniently possible, preferably in Wales. The presiding judge was directed to consider whether it should be heard by the same constitution as the related appeal in South Cambridgeshire District Council v Gammell, reference C3/2008/0042.

1. Court of Appeal (Civil Division): on 9 April 2008, permission to appeal was granted under [2008] EWCA Civ 523. Directions were given for an expedited hearing and consideration of a common constitution with a related appeal.
2. Cardiff Civil Justice Centre: Mr Recorder Keyser QC dismissed the appellant’s appeal against the housing officer’s decision that the accommodation offered was suitable and that the authority’s housing duty had been discharged.