R (Ward) v South Cambridgeshire DC, [2014] EWHC 521 (Admin), 4 February 2014

The local authority manages Gypsy and Traveller sites in South Cambridgeshire at Blackwell and Whaddon. Ms Ward is an Irish Traveller and the mother of six children. She currently lives in privately rented accommodation. She has been on the waiting list for a pitch on one of the two sites managed by the local authority since March 2010.

The allocation policy used by the local authority provides, amongst other things that:-

…pitches will be allocated on our sites in a similar way to the points system used in social housing. Allocation decisions will be made by the Travellers’ Site Team Leader and the Housing Services Manager. It is however recognised that each site is a distinct community, and it is important that we avoid incompatibility between residents. In view of SCDC’s obligations to the long-term sustainability of the site communities, and its duty of care to existing residents, we reserve the right to determine, on occasion, that it may not be appropriate to offer a pitch to a particular applicant.

We will consult with existing residents before making an offer of a pitch and if it becomes apparent that the presence of any individual would cause friction on a particular site, then we will not be able to make an offer to the applicant for that site. In this instance every effort will be made to assist the applicant to locate a suitable alternative pitch or site.

Ms Ward instructed CLP to press her case for allocation of a pitch on one of the two sites. On 30 January 2012 the local authority wrote in the following terms:-

While we are more than happy to retain your application on our list until we have further sites available, it is highly unlikely that we will be able to make you an offer of one of these two sites and felt it would be fair to advise you of this and to offer you our help, if needed, to locate a suitable alternative.

After the Judicial Review action was commenced on behalf of Ms Ward to challenge this matter, the local authority wrote in December 2012 as follows:-

We confirm our stated position that the portion of the letter you seek to challenge was merely a non-binding expression made at the time and on the basis of the position as it then appeared, that if a pitch became available, the Council thought it was highly unlikely that it would be able to offer it to your client.

 …..

 For the avoidance of doubt, this authority will consider any application on the merits on the basis of the facts and the circumstances as they then appear. If and when a pitch becomes available, the Council would of course consider your client’s needs, her position on the waiting list and her eligibility for a pitch in accordance with the Council’s allocations policy as it then stands, together with all relevant considerations on the date a decision to allocate was made.

The statement made a year ago was not intended to bind the authority to any cause of action, nor in any way to pre-judge any future consideration.

The challenge brought was by reference to the Equality Act 2010. The application was dismissed by HHJ Mackie QC who stated:-

The letter [of30 January 2012] must be read as meaning what it says. The suggestion that the letter somehow made reference to particular characteristics of the claimant (as opposed to the mere fact that she was a Traveller) was wisely not pursued. The letter was not a decision (this is evident from the way in which the amended application is expressed)…

This was a statement of likely future intention. I accept that it was not some piece of routine correspondence being seized on without good reason. It was completely understandable and appropriate for the solicitors to take it up and pursue it, but nonetheless it was not a decision and despite Mr Willers’ argument in reply…. it does not seem to me that the letter is a decision, or anything similar which is susceptible to Judicial Review.

…

It is perfectly clear from [the letter of December 2012] that the authority would in future consider any application on the merits. It has disavowed the letter of 30 January in clear terms and it has given the assurances and made the statements which I read out earlier…There is no need for the defendant to grovel or to admit unlawfulness. As I have said, there was no decision. The letter disavows the views expressed. They are characterised today as inaccurate and unwise, the policy is under review and the survey is being carried out.

Ms Ward is seeking leave to appeal to the Court of Appeal against this decision.