Mahoney & Anor, R (on the application of) v Secretary of State for Communities and Local Government

Section 33(2) of the Land Compensation Act 1973, which restricts home loss payments to caravan dwellers where no suitable alternative site is available on reasonable terms, is compatible with article 14 of the Convention.

The provision falls, at most, within the ambit of article 1 of the First Protocol through a possible statutory legitimate expectation of compensation. Caravan dwellers and residents of dwelling-houses are not in analogous situations because caravans can be moved while dwelling-houses cannot. In any event, the distinction is objectively and reasonably justified. It reflects the different physical consequences of displacement, pursues a legitimate social and economic policy, and is not manifestly without reasonable foundation.

Two judicial review claims were brought by Irish Travellers displaced from a local authority caravan site required for the Crossrail project. Suitable alternative pitches were available on reasonable terms. Section 33(2) of the Land Compensation Act 1973 therefore prevented home loss payments being made.

The claimants argued that the provision unlawfully discriminated between caravan dwellers and people living in dwelling-houses, contrary to article 14 read with article 8 and article 1 of the First Protocol. They sought declarations of incompatibility under section 4 of the Human Rights Act 1998. The central issues were whether the claims fell within the ambit of either substantive Convention right, whether the two groups were in analogous situations, and whether the difference in treatment was justified.

1. The claims were dismissed. Section 33(2) of the Land Compensation Act 1973 was not incompatible with article 14 of the Convention.
2. The relevant question was the effect of section 33(2), rather than the compulsory acquisition process itself. The provision merely withheld a payment in defined circumstances. It did not authorise acquisition, displace the claimants, expropriate their licences, or remove an existing property right. The claimants’ article 8 case therefore fell outside the ambit of that right. Article 1 of the First Protocol was also not engaged by their licences as existing possessions. However, on the broadest possible analysis, section 33 could create a statutory legitimate expectation of receiving a home loss payment unless a suitable alternative site was available on reasonable terms.
3. Even assuming that article 14 was engaged, the comparison with residents of dwelling-houses failed. The statutory purpose of a home loss payment is to recognise distress caused by losing a home through compulsory acquisition. A dwelling-house is immoveable, whereas a caravan can be taken to another site. The two situations therefore involved a material and practical difference and were not analogous.
4. The restriction was objectively and reasonably justified. Extending home loss payments to caravan dwellers was a legitimate aim. The qualification in section 33(2) was a measure of social and economic policy, attracting a broad margin of legislative discretion. The appropriate test was whether the provision was manifestly without reasonable foundation. It was not.
5. Section 33(2) required an individual assessment. A payment remained available where no alternative site existed, where the site was unsuitable, or where the terms were unreasonable. Suitability and reasonable terms were flexible questions of fact and degree, including consideration of site facilities, local amenities, community circumstances and potential difficulties with the settled community. The provision did not require equivalent amenity, and Parliament was not required to choose the most proportionate means.