McDonagh, R (on the application of) v London Borough of Hackney

A public authority’s policy for rationing a scarce resource is not irrational merely because competing criteria produce advantages and disadvantages for different applicants. Courts should be slow to interfere with allocation policies involving polycentric judgments, local expertise and administrative complexity. A requirement for a demonstrable and contemporary residential connection with the relevant borough may be lawful. So may an annual renewal requirement, where it ensures that a scarce waiting list remains current and manageable. Administrative procedures will remain lawful where they are reasonable, fair and not unduly burdensome, even though individual applicants may experience difficulty in complying with them.

The claimant, an Irish traveller with longstanding links to Hackney, sought judicial review of Hackney’s policy for allocating pitches on authorised traveller sites. The policy required applicants to demonstrate a current residential connection with the borough, provide specified documentation and renew their registration annually. The claimant argued that those requirements irrationally disadvantaged travellers affected by vulnerability, lack of authorised sites and difficulties in maintaining documentation and communication.

An earlier challenge concerning a decision under section 77 of the Criminal Justice and Public Order Act 1994 had been refused permission and was not pursued. The central issue was whether Hackney’s allocation policy and its administrative procedures were irrational or otherwise unlawful.

1. The claim was dismissed. Hackney’s policy was lawful and was not irrational.
2. Following the approach in R(Ahmad) v Newham London Borough Council [2009] UKHL 14, the court should be particularly slow to interfere with a policy designed to ration a scarce resource. Such policies necessarily involve competing arrangements and potential winners and losers. The court must not substitute a preferred or supposedly superior scheme for the authority’s chosen policy.
3. The requirement for a residential connection with Hackney was rational. It was legitimate to give priority to persons living in the borough or to travellers who had lived there and retained a firm point of contact, such as a continuing care-of address.
4. The requirement for annual renewal was also rational. Given the small number of pitches and intense competition for them, the authority needed an effective process to ensure that applicants retained a continuing interest and continued to meet the relevant criteria. Without such a process, the waiting list could become unmanageable.
5. The court recognised that annual renewal, documentation requirements and communication difficulties could burden travellers, particularly those unable to read or write. Those difficulties did not invalidate the policy as a whole. Applicants could use a responsible care-of address, obtain assistance from others or attend the Council’s offices to renew their registration.
6. The procedures were reasonable, fair and not unduly burdensome. Administrative systems inevitably involve cost and risk of error, and the claimant’s individual difficulties did not establish that Hackney’s general policy was irrational. The claimant was ordered to pay the defendant’s costs, subject to assessment under section 11 of the Access to Justice Act 1999.