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

A local authority may use the statutory procedure for unauthorised encampments where it is the person entitled to possession of the land and any permission to occupy was temporary and has ended. Service requirements are assessed practically. Personal service on an occupant may suffice, and fixing a direction under a caravan step can satisfy the statutory requirement where the recipient knew of the direction and suffered no prejudice.

Welfare enquiries and the public sector equality duty must be addressed rationally and in context. The duty is to have due regard to the statutory equality aims, rather than to achieve a particular result. A formal equality assessment is not invariably required where the authority has considered the relevant circumstances and equality implications.

SO, a member of the McGinley family of Pavee Travellers, occupied a caravan at a site forming part of Ramsgate Port. The Council had permitted two families to use the site temporarily after welfare concerns arose at another unauthorised encampment. It later served directions under section 77 of the Criminal Justice and Public Order Act 1994, including a November direction served on caravans occupied by SO and her family.

SO sought judicial review, challenging the directions as unlawful and irrational, disputing service, alleging inadequate welfare enquiries and breach of guidance and the public sector equality duty, and seeking an order requiring a lawful policy for unauthorised sites. Permission had initially been refused on paper, but the renewed application was listed as a rolled-up hearing.

1. Outcome. Permission to apply for judicial review was refused. The September and November directions were not arguable unlawful or irrational, and no order requiring a new unauthorised-sites policy was justified.
2. The Council was the relevant occupier because it was entitled to possession of the land by virtue of its estate or interest. The temporary permission given to the two families was understood to last for up to five months. By the time of the November direction, the temporary period had ended and the medical circumstances that had prompted the arrangement had changed. The direction was therefore neither unlawful nor irrational.
3. Section 79(2) of the Criminal Justice and Public Order Act 1994 permits service by fixing a copy to the vehicle where personal service is impracticable. In context, service on an occupying family member was sufficient. Wedging the direction under the caravan step amounted to sufficient and proportionate fixing, particularly since SO knew of the direction and identified no prejudice.
4. The Council had undertaken sufficient and rational welfare enquiries. The family’s circumstances were known, relevant departments and health services had been involved, site visits had occurred, and the two-direction approach had accommodated the identified medical concerns.
5. In applying section 149 of the Equality Act 2010, the court held that the public sector equality duty is a duty to have due regard to the statutory aims, not a duty to achieve a particular result. Its application is context-sensitive. The temporary nature of the arrangement, the equality assessment concerning the site, the recorded circumstances of SO and her family, and the resolution of the medical issues meant that sufficient regard had been paid to equality considerations.
6. Poor sanitary conditions did not affect the legality of the directions. Written submissions on costs were ordered within seven days.

Permission to apply for judicial review was refused on paper on 19 January 2022. On renewal, the matter was directed to a rolled-up hearing on 5 April 2022. The Administrative Court refused permission and dismissed the claim.