McDonagh, R (On the Application Of) v Newport City Council

A local authority may limit eligibility for scarce Gypsy and Traveller site pitches to applicants who demonstrate a genuine cultural aversion to bricks and mortar accommodation, rather than merely a strong preference for caravans. “Aversion” bears its ordinary meaning of a strong dislike or disinclination. The policy does not require a psychiatric diagnosis or report.

The authority may assess aversion on the evidence supplied by the applicant and its own enquiries. The factual assessment is subject to ordinary public law review. A policy is not irrational merely because it uses an exclusionary eligibility criterion instead of placing all applicants on a prioritised waiting list. The public sector equality duty requires due regard, with rigour and an open mind, but does not require a particular outcome.

The claimant, an Irish Traveller with mental health difficulties, challenged Newport City Council’s revised Gypsy and Traveller Site Allocations Policy and its refusal to treat her as eligible for a pitch. The policy applied to persons within the statutory definition of Gypsy or Traveller who could demonstrate an aversion to living in bricks and mortar accommodation.

The claimant argued that the policy was unlawful because “aversion” was undefined, that the council had applied an impermissibly restrictive test, that its individual decision failed to take account of relevant matters or was irrational, and that the policy breached the public sector equality duty under section 149 of the Equality Act 2010. The central issues were the proper construction of “demonstrable aversion”, the legality of the individual assessment, and the lawfulness of the policy’s resource-allocation approach.

1. Disposition. The claim was dismissed. The court declared that “aversion” in the policy bears its ordinary meaning of a genuine strong dislike or disinclination. The policy did not import the narrower approach developed in homelessness cases.
2. Construction and evidence. The absence of a definition did not make the policy unfair or unlawful. The requirement was directed to the distinction between a genuine cultural aversion and a preference, including a strong preference, for caravan accommodation. A psychiatric condition or psychiatric report was not necessary. The defendant’s officers could assess the issue from the applicant’s evidence and their own enquiries.
3. Individual decision. Whether the claimant had demonstrated an aversion was a question of fact for the council. The court could intervene only on public law grounds and could not substitute its own assessment. The claimant’s history of living in bricks and mortar accommodation, her earlier willingness to consider flats or bedsits, the timing of her application for a pitch, and the account of the 2017 interview were material matters the council was entitled to consider. The claimant’s homelessness and cultural preference did not compel a finding of aversion.
4. Reasons and equality duty. The council was not required to mention every matter before it, and material matters within its knowledge were presumed to have been considered absent good reason to infer otherwise. The assessment under section 149 of the Equality Act 2010 sufficiently addressed the policy’s impact on race and disability. The public sector equality duty was a duty of due regard, not a duty to achieve a specified result.
5. Rationality and scarce resources. The policy’s recognition of Traveller culture was not undermined by using demonstrable aversion as an eligibility criterion. Given the scarcity of pitches, it was rational to reserve them for applicants with the greatest need. The council was not required to place applicants with only a strong cultural preference on the waiting list.