When bricks and mortar are not suitable accommodation: Alex Offer brings successful appeal

The case concerned three linked appeals under s204 Housing Act 1996 against review decisions of Basildon Borough Council as to the suitability of its offers of accommodation to the appellants. The appellants and their families were members of the Irish Traveller community and former residents of the Dale Farm Gypsy and Traveller site. They were accepted to be unintentionally homeless and in priority need. In each case offers of "bricks and mortar" were appealed on the basis that nothing less than a place to pitch their caravans would be suitable, supported by medical evidence as to the mental and/or physical consequences if they were obliged to live in "bricks and mortar". It was argued by the respondent that the Court of Appeal's decision in Sheridan and others v Basildon Borough Council [2012] EWCA Civ 335 was determinative. However, the appellants successfully argued that whether the offers of "suitable accommodation" fell below the Wednesbury minimum line in relation to the needs of each particular appellant and their family and/or that the Council's decisions were contrary to Article 8 ECHR remained open to challenge.

Of the three appeals heard, one was allowed but the other two were dismissed. Of the latter the case of KS is worth some attention, demonstrating the veritable mountain which Gypsy and Traveller applicants must climb in order to succeed. In KS's case undisputed expert evidence that her anxiety was such that she would "probably be unable to enter the property at all" was insufficient to render the offer of "bricks and mortar" unsuitable. Despite this another of the applicants, JS, did succeed in having the decision to offer her the property quashed.

The case is notable as being a case in which a Gypsy or Traveller has successfully challenged a decision that "bricks and mortar" accommodation is suitable on Wednesbury grounds: an unusual occurrence. It is also valuable to advisers as an indication of the care and detail which is required from expert's preparing reports for potential applicants in such cases and for the arguments that may be deployed in response to such evidence, in particular by reference to the "causation" of any adverse health effects. It should be noted that the court held that a Council may not need to obtain its own medical evidence in rebuttal. However, in the case of JS the decision was quashed on the basis the Council ought to have made further medical enquiries if it wished to offer "bricks and mortar".

Alex Offer is a member of the Garden Court Housing and Romani Gypsy and Traveller Rights Teams.