Lisa Smith v Secretary of State for Levelling Up, Housing & Communities & Anor.

Where a policy causes admitted indirect discrimination in its application to an affected individual, the policy-maker bears the burden of justification. The claimant does not face the high hurdle applicable to an abstract challenge.

Justification must address the particular discriminatory measure. A claimed legitimate aim requires an evidential foundation and cannot rest on assertion, unexplained perception or resentment. Proportionality depends on how suggested safeguards operate in practice, rather than their theoretical availability.

Excluding Gypsies and Travellers who have permanently stopped travelling because of age or disability also engages ethnicity where caravan living remains integral to their cultural identity. General planning policies and human-rights protections do not themselves justify removing the benefit of specific planning policy.

Lisa Smith and her family, who are Romany Gypsies living in caravans, occupied a site at Coalville. Two adult family members were severely disabled and unable to travel for work. An inspector dismissed an appeal against the refusal of permanent planning permission after concluding that the family fell outside the definition of “Gypsies and Travellers” in Planning Policy for Traveller Sites 2015.

The policy had removed from that definition people who had permanently ceased travelling because of health, education needs or old age. The Secretary of State accepted that this exclusion indirectly discriminated against elderly and disabled Gypsies and Travellers.

Pepperall J dismissed a statutory challenge under s.288 of the Town and Country Planning Act 1990: [2021] EWHC 1650 (Admin). The appeal concerned the proper test and burden of justification, whether race discrimination was engaged, whether the exclusion pursued a legitimate aim, and whether its effects were proportionate.

1. Appeal allowed. The judge applied the wrong approach to justification. This was a concrete challenge by an individual subjected to admitted indirect discrimination, not an abstract challenge to legislation or policy. The “high hurdle” discussed in other contexts did not apply. The burden rested on the Secretary of State to justify the discrimination: paras [48]–[59].

2. Race and ethnicity were inherent in the claim. Romany Gypsy ethnicity does not depend on continuing nomadism. Living in caravans is integral to the traditional identity of many Gypsies and Travellers. The exclusion therefore discriminated on interconnected grounds of age, disability and race: paras [62]–[69].

3. The relevant aim was the aim of the exclusion itself, considered within the wider policy context. It was insufficient to examine only the aims of Planning Policy for Traveller Sites 2015 as a whole. Although fairness can be a legitimate aim, the Secretary of State had to provide evidence supporting that characterisation. Mere assertion, perceived unfairness or resentment could not establish a legitimate objective for admitted discrimination: paras [75]–[99].

4. The contemporaneous material did not establish fairness as the exclusion’s true objective. It acknowledged that the measure would not eliminate discrimination, advance equality of opportunity or foster good relations. It also anticipated reduced access to permission, family separation, homelessness, unauthorised camping and impaired access to health and education. Creating sub-classes within an ethnicity required specific justification, which was absent: paras [93]–[101].

5. Alternatively, the measure failed the proportionality balance. Its potentially wide and harsh effects outweighed the unsupported assertion of fairness. Less intrusive possibilities included preserving the former status of people who had already ceased travelling or limiting the change geographically. Theoretical access to general planning policy, personal circumstances and Convention rights did not demonstrate that those safeguards removed the disadvantage in practice: paras [102]–[122].

6. Wrexham governed the construction of “nomadic habit of life” under the earlier statutory and policy framework. It did not determine a later challenge involving admitted discrimination under Articles 8 and 14 and the Equality Act 2010: paras [123]–[129].

7. The court decided only that the exclusion was unjustified in its application to this planning appeal. It did not declare the policy generally unlawful. Because the exclusion was an operative factor and the inspector might have reached a different result without it, the inspector’s decision was quashed and the planning appeal remitted to the Secretary of State for redetermination: paras [131]–[139].

1. Court of Appeal (Civil Division): The appeal was allowed. The inspector’s decision was quashed and the planning appeal was remitted to the Secretary of State for redetermination: [2022] EWCA Civ 1391.
2. High Court, Planning Court: Pepperall J refused the application under s.288 of the Town and Country Planning Act 1990 to quash the inspector’s decision, holding that the admitted indirect discrimination was justified: [2021] EWHC 1650 (Admin).
3. Planning inspector: The inspector dismissed the appeal against the local planning authority’s refusal of permanent planning permission on 23 November 2018.