R(Patrick Mahoney, Frances Jones and Rachel Cleary) -v- Secretary of State For Communities and Local Government  EWHC 589 (Admin) 9 MARCH 2015
In this case, the Claimant Irish Travellers, who have to move from their site to an alternative site due to the Crossrail Project, challenged their inability, under the Land Compensation 1973, to claim home loss payments (unlike the situation for house dwellers). Unfortunately they were unsuccessful in this challenge.
Under the Land Compensation Act 1973 house dwellers will receive “home loss payments” even if they are offered a suitable alternative property to move to. This is in situations where their dwelling is acquired by a public authority with compulsory purchase powers. However, in similar circumstances for Gypsies and Travellers and other “caravan dwellers”, section 33(2) of the Land Compensation Act 1973 states that, if a suitable alternative site on reasonable terms is offered, they will not receive a home loss payment. The Claimants are Irish Travellers who are having to move from their site at Eleanor Street in the London Borough of Tower Hamlets due to the Crossrail Project and the construction of a ventilation and emergency shaft. They are being moved to a neighbouring piece of land that has been acquired. They requested home loss payments but these were refused. The only way forward for the Claimants was to seek a Declaration of Incompatibility i.e. that the Land Compensation Act 1973 section 33(2) was incompatible with the Human Rights Act 1998. Permission was given for this case to proceed on the basis of potential Article 14 discrimination either in terms of Article 8 (the right to respect for private and family life and home) or in respect of Article 1 of the First Protocol (the right to protection of property).
Mr Justice Lindblom (Lindblom J) gave judgment on the matter. He did not feel that Article 8 was engaged but he stated that, even if Article 1 of the First Protocol was engaged, the Claimants’ circumstances were not analogous to the circumstances of those with whom they sought to compare themselves i.e. house dwellers. Lindblom J stated:
55. Where the difference between a claimant’s situation and the situation of those with whom he seeks to compare himself is so obvious that they cannot be regarded as ‘analogous’ it is unnecessary for the court to consider whether a difference in treatment is justified…
…60… I accept that the concept of a ‘home’ is broader than merely the physical structure which forms a habitation. But when that concept is being considered there is, in my view, a material difference to be discerned between a caravan and a dwelling-house, and a material difference between a situation of someone who lives in a caravan and someone who lives in a dwelling-house. When a caravan dweller is compelled to move from a site where he has stationed his caravan he is able to take the caravan with him. It is mobile. By contrast, when a person who lives in a dwelling-house is displaced from it he leaves not only the location where he has made his home but also the house in which he has lived. It is immoveable. This is a practical difference, and in my view a significant one. It goes to the very heart of this case.
Lindblom J also addressed the question of whether the difference in treatment (subject to what is said above) was objectively and reasonably justified. He stated:
77. The territory with which the court is concerned here is firmly within the sphere of economic and social policy…
…In this area, as I have said, Parliament has traditionally been accorded a wide area of discretion.
78. Section 33(2) of the 1973 Act cannot be regarded as a measure which is aimed at, or bears specifically upon, an unusually vulnerable group…
79. In my view… the test the court must apply in this case is whether the measure under challenge is ‘manifestly without reasonable foundation’ and I can see no basis for the argument that in this instance Parliament failed that ‘stringent’ test. ….
…82. I should add here…that both the European Court of Human Rights and the domestic courts will also take into account the absence of any consensus among member states as to the importance of measures under consideration. The circumstances in which home loss payments may properly be made or withheld have not been the subject of any such agreement between member states. …
…85. The fact that there will be cases in which a particular site is found to be both ‘suitable’ for stationing a caravan and ‘available… on reasonable terms’, with the consequences that a home loss payment is not available to the caravan dweller forced to move his caravan from its existing pitch, does not mean that the restriction in section 33(2) is disproportionate.
Concluding on the question of proportionality, Lindblom J stated:
94. It is not symptomatic of a disproportionate approach that Parliament could have provided for a reduced home loss payment in cases where a caravan dweller is able to move his caravan to an alternative site. Parliament’s task is not to select the optimum means by which to achieve the relevant aim. The question is whether the means adopted were proportionate, not whether they were the most proportionate.
However Lindblom J did state that a public authority in such a situation has a discretion to make a home loss payment:
95. I do not accept that section 33(2) has the effect of prohibiting acquiring authorities from making discretionary or ex gratia payments outside the statutory scheme for home loss payments in Part III of the 1973 Act.
Though not part of the reasons for the decision, Lindblom J also looked at the question of suitability of alternative accommodation. His conclusion on this will be very useful for those advising Gypsies and Travellers on homelessness cases where, on many occasions, local authorities will offer bricks and mortar accommodation rather than a pitch. Lindblom J stated:
92. … If the only alternative accommodation available for the caravan dweller was a ‘bricks and mortar’ dwelling, it obviously would not be a ‘suitable alternative site for stationing a caravan’ and a home loss payment would therefore not be precluded.
We still believe that home loss payments should be made to Gypsies and Travellers in these circumstances. We hope that a future Government may return to this issue. Well done to the Claimants for taking this claim and to the Barrister, Alex Offer, who represented them. CLP were the solicitors in this claim.
See Mahoney Judgment attached