Homelessness

Legally correct, 2014

Under the Housing Act 1996, a Gypsy or Traveller is homeless if s/he does not have a lawful place to put his or her caravan or living vehicle (1). If a homeless person is in priority need (2) and not intentionally homeless (3) then a local authority will have a duty to ensure that the individual is provided with accommodation (4).

In R (Margaret Price) v Carmarthenshire County Council (5), Mrs Price had made an application as a homeless person to the local authority since she had no lawful place where she could pitch her caravans. After considering the matter, the local authority offered Mrs Price a house and sought her family’s eviction from their encampment on local authority land which had, up until then, been tolerated by the council. Newman J quashed the decision to evict, stating that: In order to meet the requirements and accord respect, something more than ‘taking account’ of an applicant’s gypsy culture is required.

As the courts in Chapman stated, respect includes the positive obligation to act so as to facilitate the Gypsy way of life without being under a duty to guarantee it to an applicant in any particular case.  The judge examined the way in which the local authority had dealt with the issue of Mrs Price’s ‘cultural aversion to conventional housing’ (6) and found that the local authority’s approach had been flawed because: it had placed too much weight on the fact that she had seemingly been prepared to give up her traditional way of life to live in conventional housing in 2001; and, it had used this fact as sufficient reason for totally disregarding her ‘aversion to bricks and mortar’ when considering whether the offer of conventional housing would be ‘suitable’ in her case.

However, the judge also found that: if the local authority reached the conclusion that Mrs Price’s cultural commitment to traditional Gypsy life was so powerful as to present great difficulty in her living in conventional housing, it was not bound by a duty to find her an authorised pitch or site; but that her cultural aversion to conventional housing was a significant factor in determining how far the local authority should go to facilitate her traditional way of life (7).

Local authorities who receive such a homeless application, must make an assessment of the Gypsy’s or Traveller’s aversion to conventional housing and must then see whether they can ‘facilitate the Gypsy way of life’. The latter, it is argued, should involve a serious and extensive consideration of land/pitches/sites in the area (and not just land owned by the local authority in question). Local authorities should already be undertaking this exercise as part of the homelessness strategies and reviews that each local authority is obliged to put into place every five years (8).

Other issues are likely to arise in due course as a result of Price style homelessness applications. What is the position for New Travellers? What about the question of intentional homelessness decisions where the Gypsy or Traveller left conventional housing in the past due to their inability to reside in such accommodation? What about the question of ‘local connection’ i.e. if an applicant does not have a local connection with the local authority they apply to, they may be referred to another local authority where they do have such a connection? (9)

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One issue has recently been resolved. In the case of Myhill & Faith v Wealden District Council (10), it was argued on behalf of the single homeless Travellers involved that, due to the much greater likelihood of homelessness amongst Gypsies and Travellers due to the lack of authorised stopping places, due to the greater difficulty in finding ‘accommodation’ and due to the possibility of criminal prosecution while on unauthorised encampments, they should be seen as being ‘vulnerable’ and thus ‘in priority need’. This argument was rejected both by the county court judge and by Buxton LJ in refusing permission to appeal to the Court of Appeal. Buxton LJ, relying on the test of ‘vulnerability’ provided in the case of R v Camden LBC ex p Pereira, (11) stated:

The focus [in the Pereira case] is quite clearly on the ability of the individual to deal with the condition of homelessness, rather than on the question to which statistics and oral arguments in this case go, of how likely it is that persons when they become homeless will remain such.

In terms of interim accommodation, it is often argued by advisers that, if the Gypsies or Travellers concerned are on land owned by the same local authority to whom the homelessness application has been made, and, if that land is not ‘inappropriate’, that they should be allowed to remain there whilst their application is determined (perhaps in fulfilment of the interim accommodation duty) (12).

Given the relative novelty of a lot of these arguments (13), it can be very important for Gypsies and Travellers to obtain advice and assistance throughout this homelessness process.

By Marc Willers, 2 Garden Court, Temple, London 2004 (Legally correct 2014)
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Footnotes:
1. Housing Act 1996 Act, s.175.
2. Housing Act 1996 Act s.189 defines the term ‘priority need’ to include: those with dependant children, pregnant women, those fleeing domestic violence, people who are very ill, the elderly, those who are seen as ‘vulnerable’ and others.
3. Defined as someone who ceases to occupy accommodation which it would have been reasonable for him/her to continue to occupy due to an act or omission by that person. Housing Act 1996 Act s.191.
4. Housing Act 1996 Act s.193. There are also interim duties. ‘Accommodation’ must be ‘suitable’ (s.206).
5. [2003] EWHC 42 (Admin), Legal Action March 2003 pp.30-31.
6. As referred to in the planning case of Clarke v Secretary of State for the Environment, Transport and the Regions & Tunbridge Wells BC (2002) JPL 552, see paras. 30-34.
7. The Court of Appeal has now addressed this issue in the case of Leanne Codona v Mid-Bedfordshire District Council –  judgement awaited at the date of publication.
8. As brought in by the Homelessness Act 2002 – the first review ought to have been completed by the end of July 2003.
9. 1996 Act s.199.
10. (2004) EWCA Civ 224, refusal by Court of Appeal to grant permission to appeal from the decision of Mr Recorder Elvidge in the Tunbridge Wells County Court. Legal Action April 2004 p.34.
11. (1998) 30 HLR 317,CA.
12. Housing Act 1996 Act s.188.
13.And given the high rates of illiteracy or poor literacy amongst the Gypsy/Traveller community.