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

The claimant sought judicial review of the defendant council’s revised Gypsy and Traveller Site Allocations Policy and of the council’s decision that she was ineligible for a pitch because she had not demonstrated an "aversion" to living in bricks and mortar accommodation. The court held that the absence of a definitional provision in the policy was not unfair: the ordinary meaning of "aversion" (a strong dislike or disinclination) applied. The judge concluded that the council applied that ordinary meaning, not a stricter psychiatric standard borrowed from homelessness case law. On the facts the council was entitled to find the claimant did not demonstrate an aversion, having regard to her history of living in bricks and mortar, earlier housing applications indicating willingness to accept conventional accommodation, and her contemporaneous interview with the housing officer. The court also rejected the challenge under section 149 of the Equality Act 2010, finding the council had had due regard to equality matters in adopting the policy and that the policy’s allocation mechanism for scarce pitches was not irrational.

This is a first instance claim for judicial review. The claimant, an Irish traveller who had lived in caravans since leaving home in 2012, challenged (1) the lawfulness of Newport City Council’s revised Gypsy and Traveller Site Allocations Policy which limited eligibility to applicants who can "demonstrate an aversion to living in bricks and mortar accommodation", and (2) the lawfulness of the council’s decision that she did not demonstrate such an aversion. The claimant is within the statutory definition of gypsy and traveller and had protected characteristics including race and disability.

The nature of the application: the claimant sought declaratory relief and to quash the policy and/or the decision as unlawful, irrational or in breach of the public sector equality duty under section 149 of the Equality Act 2010.

Issues framed by the court:

• whether the policy was unlawful for lacking a definition of "aversion";
• whether the council misdirected itself in construing or applying the policy;
• whether the council’s decision as to the claimant’s eligibility was unlawful for failure to take relevant matters into account or irrational;
• whether the policy was unlawful for breach of the public sector equality duty or irrational.

Court’s reasoning: The judge held that ordinary meaning governs policy interpretation and that the absence of a definition did not render the policy unfair. The homelessness authorities (including Sheridan) were considered but the judge distinguished them as addressing mandatory duties to provide accommodation, where a narrower construction of aversion may be apt. The policy in question concerned eligibility for scarce pitches and was to be construed in its ordinary sense: a genuine cultural aversion rather than simply a preference. The evidence relied on by the council (the claimant’s prior long residence in bricks and mortar, prior applications indicating acceptance of flats or bedsits, the 2017 housing interview in which the claimant accepted bricks and mortar would be considered, and the council’s enquiries and documentation) provided an adequate factual basis for the council’s finding that the claimant had not demonstrated an aversion. The judge emphasised the limited role of the court on questions of fact. On equality duty the court found that the council had carried out a Fairness and Equalities Impact Assessment, had given due regard to race and disability, and that the allocation policy addressing scarce resources was not irrational or unlawful under section 149.

Subsidiary findings: the judge rejected the claimant’s submission that the council applied a psychiatric standard or an unlawfully restrictive construction. The judge made a declaration as to the construction of "demonstrable aversion" as reflecting the ordinary meaning, and dismissed the claim.

The claim is dismissed. The court held that (i) the policy is lawfully construed by reference to the ordinary meaning of "aversion" (a strong dislike or disinclination) and its lack of a definition did not make it unlawful; (ii) the defendant did not misdirect itself and applied the ordinary meaning rather than a psychiatric threshold; (iii) the council’s decision that the claimant had not demonstrated an aversion was a lawful factual conclusion open to the authority on the material before it; and (iv) the policy did not breach the public sector equality duty and was not irrational given the scarcity of pitches.