SO (R on the application of) v THANET DISTRICT COUNCIL

The claim sought judicial review of two directions issued under section 77 of the Criminal Justice and Public Order Act 1994 requiring persons residing in vehicles on Council land to leave. Key legal issues were (i) whether the s77 directions were unlawful or irrational given prior temporary consent to occupy; (ii) whether service complied with section 79 of the Act; and (iii) whether the Council failed to carry out proper welfare enquiries or to have due regard under section 149 Equality Act 2010 and relevant guidance (DOE Circular 18/94, the 2004 and 2006 guidance) before issuing directions.

The court found that the Council had authorised temporary occupation for a limited period and that the November 2021 direction was issued after that temporary licence had come to an end and the acute welfare circumstances that had justified toleration had been resolved. The issue of withdrawal of the temporary licence did not render the November direction unlawful or irrational.

On service under s79 the court accepted that the November direction was left with a member of the occupying family and that wedging the notice under the caravan step amounted to sufficient fixing to the caravan in the circumstances; there was no suggestion of unawareness or prejudice by the claimant.

On welfare enquiries and the Public Sector Equality Duty the court held the Council had taken proportionate and documented welfare steps, undertook an Equality Impact Assessment for the temporary site arrangements, engaged relevant agencies and acted with regard to guidance; there were no arguable omissions amounting to a breach of the PSED or to render the directions unlawful.

Accordingly permission to pursue judicial review was refused.

Background and parties: SO, a member of a Pavee Traveller family, had lived with family members on a Ramsgate Port car-park site in caravans from 14 June 2021. The site was partly owned by Thanet District Council and partly leased from The Crown Estate. The Council served section 77 Criminal Justice and Public Order Act 1994 directions in September and November 2021 requiring occupiers to leave. SO challenged the legality of those directions, sought quashing and an order requiring the Council to produce a lawful management policy for unauthorised sites; she also obtained anonymity and an injunction at an early stage.

Procedural history: The claim for judicial review was issued on 7 December 2021. Anonymity and an interim injunction were ordered by Mrs Justice May on 7 December 2021. Permission on paper was refused by UT Judge Elizabeth Cooke on 19 January 2022. A renewed (rolled-up) permission hearing was directed by Mrs Justice Lang on 5 April 2022 and the matter proceeded to a full hearing before Deputy High Court Judge Anthony Elleray QC on 28 June 2022.

Nature of the claim and relief sought: The claimant sought quashing of the s77 directions, a mandatory order that the Council produce a policy in accordance with relevant guidance, and anonymity. The grounds advanced alleged unlawful/irrational exercise of power, defective service under s79, and failure to carry out welfare enquiries and to comply with the Public Sector Equality Duty (s149 Equality Act 2010) and government guidance (including DOE Circular 18/94, the 2004 Guidance and the 2006 Guidance).

Issues framed: (i) Whether the s77 directions were unlawful or irrational in light of prior temporary consent to occupy and whether any withdrawal of consent was effective; (ii) whether service of the November direction complied with s79; (iii) whether the Council failed to carry out lawful welfare enquiries or to have due regard to equality obligations and relevant guidance before taking enforcement action.

Court's reasoning and findings: The court accepted the Council had permitted temporary occupation of two families in June 2021 because of acute welfare concerns and that such permission was understood to be temporary. The September 2021 direction targeted later, unauthorised arrivals; the November 2021 direction included the temporarily tolerated families because the temporary licence period had ended and the specific welfare concerns had been resolved or removed. The judge found no requirement for a formal separate termination notice prior to issuing the November direction and held that adding the November direction before the magistrates alongside the September direction was not irrational or an abuse of process.

On service, the court accepted evidence that the November direction was left with an occupant and was wedged under the caravan step; the claimant did not assert lack of awareness or prejudice, and the judge considered the method sufficient in the circumstances under s79(2).

On welfare enquiries and equality obligations, the court noted the Council had undertaken welfare-related inquiries, liaised with Kent County Council services, carried out an Equality Impact Assessment and followed its internal processes and national guidance. The judge concluded that the Council had had due regard to equality considerations and there was no arguable omission requiring quashing of the directions or an order compelling a management policy in the form sought.

Outcome: The judge refused permission to apply for judicial review, concluding there were no arguable grounds to quash the directions or to require the Council to produce a policy.

Permission to apply for judicial review is refused. The court held that the November 2021 s77 direction was lawful and not irrational in light of the temporary nature of the licence and changed welfare circumstances; service under s79 was factually sufficient; and the Council had undertaken proportionate welfare enquiries and satisfied its obligations under the Public Sector Equality Duty and relevant guidance such that there were no arguable grounds to quash the directions or to order a management policy.

Claim issued 7 December 2021. Anonymity order and interim injunction by Mrs Justice May on 7 December 2021. Permission refused on paper by UT Judge Elizabeth Cooke on 19 January 2022. Renewed (rolled-up) permission hearing ordered by Mrs Justice Lang on 5 April 2022; the rolled-up substantive hearing determined the claim on 28 June 2022 (judgment handed down 8 July 2022).