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

The claimant travellers challenged section 33(2) of the Land Compensation Act 1973 as discriminatory under article 14 of the European Convention on Human Rights read with article 8 and article 1 of the First Protocol. Section 33(2) makes home loss payments to caravan dwellers conditional on there being no suitable alternative site available on reasonable terms. The court held that the claimants’ complaint about denial of a home loss payment did not fall within the ambit of article 8 and only arguably, on a broad reading, within the ambit of article 1 of the First Protocol as a statutory legitimate expectation of compensation under section 33. The claimants’ situations were not analogous to occupiers of ‘bricks and mortar’ dwellings because caravans are movable and a caravan dweller can in many cases take his home to another site. Even if the case were within the ambit of the Convention rights, the difference in treatment was held to be objectively and reasonably justified, falling within Parliament’s wide margin of appreciation in social and economic policy. The claims for declarations of incompatibility were therefore dismissed.

Background and parties:

• The claimants are Irish travellers who occupy pitches with caravans on a local authority site required for the Crossrail project. Crossrail Ltd. has powers to acquire land compulsorily and a replacement site was being provided. The claimants accepted that a suitable alternative site would be made available on reasonable terms.
• The sole legal challenge was to section 33(2) of the Land Compensation Act 1973, which precludes home loss payments to caravan dwellers where a suitable alternative site is available on reasonable terms. The remedy sought was a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Nature of the claim and issues:

1. Whether the denial of home loss payments under section 33(2) fell within the ambit of article 8 or article 1 of Protocol No. 1 so as to engage article 14.
2. Whether caravan dwellers displaced with a suitable alternative site available were in an analogous position to occupiers of dwelling-houses.
3. If within ambit and analogous, whether the difference in treatment was objectively and reasonably justified.

Procedural posture: Permission for judicial review was initially refused by Jay J. and later granted on renewal by Mitting J.; the matter proceeded to a full hearing before Lindblom J.

Court’s reasoning and findings:

• The court emphasised that article 14 is accessory to other Convention rights and those rights must be in issue. Denial of a statutory home loss payment under section 33(2) was, in the court's view, not an interference with the core values of article 8 and therefore did not fall within its ambit. The court accepted an arguable position that, on a generous reading, a statutory entitlement to a home loss payment might create a legitimate expectation amounting to a “possession” under article 1 of Protocol No.1, but treated that as only arguable.
• On analogy, the court found a material difference between caravan dwellers and occupiers of dwelling-houses: a caravan is mobile and can often be moved to an alternative site, whereas a dwelling-house is immobile so the occupier leaves the structure as well as the location. That distinction underpinned the statutory difference in treatment.
• Even if the Convention rights were engaged, the court held that section 33(2) pursued a legitimate aim and was a proportionate exercise of Parliament’s wide margin of appreciation in social and economic policy. The provision requires a fact-sensitive, case-by-case assessment whether an alternative site is suitable and available on reasonable terms and therefore is not a blanket exclusion.

Subsidiary findings and context: The court reviewed the legislative history of home loss payments and noted Parliament’s deliberate choice to treat caravan dwellers differently because of mobility. The court also noted the availability of disturbance payments and rehousing duties under other provisions of the 1973 Act. The remedy sought (declaration of incompatibility) was refused because section 33(2) was not incompatible with article 14.

The claims are dismissed. Lindblom J held that section 33(2) of the Land Compensation Act 1973 is not incompatible with article 14 ECHR read with article 8 or article 1 of Protocol No. 1. The court found the claimants’ circumstances not analogous to occupiers of dwelling-houses and, in any event, that the differential treatment was objectively and reasonably justified within Parliament’s margin of appreciation.

Permission to apply for judicial review was initially refused on the papers by Jay J. on 4 October 2013; permission was granted on renewed application by Mitting J. at a hearing on 27 February 2014. The present determination is at first instance before Lindblom J in the High Court (Administrative Court).