The Community Law Partnership | Social Welfare Lawyers in the Centre of..
The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. We aim to provide quality legal services to the most vulnerable and disadvantaged sections of society who, without our assistance, would be denied access to the legal system and to their rights.
The leading judgment on this area of law was given by the Supreme Court in the case of R (Moseley) –v- London Borough of Haringey  UKSC 56, 29th October 2014 (hereafter “the Moseley case”). [i]
The consultation exercise in Moseley can be summarised as follows: From 1st April 2013 local authorities were required to operate a new scheme, entitled the Council Tax Reduction Scheme (CTRS) to replace Council Tax Benefit (CTB). However, before bringing in this scheme, they were statutorily obliged to carry out a consultation process. London Borough of Haringey (LBH) considered that there were three options for any such scheme and decided, prior to the consultation process, that their preferred option was one that involved those who had previously received some CTB having to pay a significant amount of their Council Tax. LBH carried out a consultation which only addressed this option and the pros and cons of this option, rather than putting all three possible options in front of those who were consulted. They consulted all residents in the Borough.
In the Supreme Court, Lord Wilson (with whom Lord Kerr agreed) stated as follows : –
In R (Osborn) -v- Parole Board…… this court addressed the common law duty of procedural fairness in the determination of a person’s legal rights. Nevertheless, the first two of the purposes of procedural fairness in that somewhat different context…..equally underlie the requirement that a consultation should be fair. First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested”……. Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel”…….such are two valuable practical consequences of fair consultation. (para 24).
Lord Wilson also stated:
In R –v- Brent London Borough Council ex-parte Gunning…….Hodgson J …..said ……: –
“Mr. Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third…… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals” (para 25).
Lord Wilson further stated:
[In] R –v- North and East Devon Health Authority ex-parte Coughlan, [Lord Woolf MR stated:-]
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it might be quite onerous, goes no further than this”. (para 25).
Lord Wilson continued:-
Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. Thus, for example, local authorities who were consulted about the Government’s proposed designation of Stevenage as a “new town” (Fletcher –v- Minister of Town & Country Planning ……) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public…..Second……“the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit”. (para 26)
Lord Wilson continued:-
For example, in R. (Medway Council and Others) –v- Secretary of State for Transport ……the court held that, in consulting about an increase in airport capacity in South East England, the Government had acted unlawfully in consulting upon possible development only at Heathrow, Stansted and Thames Estuary and not also at Gatwick…… (para 27).
Lord Wilson added that:-
In Nichol –v- Gateshead Metropolitan Borough Council … Gateshead, confronted by falling birth rate and therefore an inability to sustain a viable 6th form in all its secondary schools, decided to set up sixth form colleges instead. Local parents failed to establish that Gateshead’s prior consultation had been unlawful. The Court of Appeal held that Gateshead had made clear what the other options were……. (para 28).
Applying the law to the facts of the Moseley case, Lord Wilson stated:-
Those whom Haringey were primarily consulting were the most economically disadvantaged of its residents. Their income was already at a basic level and the effect of Haringey’s proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, whilst sparing its more prosperous residents from making any contribution to the shortfall in government funding. Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why (unlike 58% of local authorities in England……) Haringey had concluded that they were unacceptable. (para 29).
Lord Wilson further continued:-
“It would not have been onerous for Haringey to make brief reference to other ways of absorbing the shortfall.” (para 30).
As a result, he concluded that the consultation process had been unlawful.
Lord Reed stated:-
“The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision making process.” (para 38).
Lord Reed expanded further as follows:-
“In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme.” (para 39).
“The consultation document presented a proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by Haringey itself. It misleadingly implied that there were no possible alternatives to that choice. In reality, therefore, there was no consultation on the fundamental basis of the scheme.” (para 42).
Lady Hale and Lord Clarke effectively agreed both with Lord Wilson and Lord Reed.
Potential grounds of challenge
Having considered the Supreme Court’s judgment in Moseley we consider that the Government’s consultation paper on powers to deal with unauthorised encampments and unauthorised developments is susceptible to challenge by way of judicial review on the following grounds:
(1) Misleading statements
First, we consider that there is a serious problem with the presentation of the law as it stands in the Republic of Ireland. After several positive references to the law in the Republic during the Parliamentary debates, the consultation document addresses this at pages 10 and 11. The most substantial error is in the sentence: ‘The Irish Government has criminalised trespass in certain circumstances, in conjunction with a statutory requirement for local authorities to provide sites for travellers.’ While there has been a statutory obligation placed on local authorities in the Republic to develop Traveller accommodation programmes pursuant to the Housing Act 1998 there is no correlation between those programmes and the implementation of a criminal provision. The fact that a local authority has or has not made sufficient alternative accommodation available is not a ‘defence’ to any direction or prosecution under Section 19A of the Public Order Act 1994. Section 19A is a criminal provision implemented by An Gardaí Siochana (the Police Force) who have no statutory obligation to provide sites, or to consider if alternative accommodation is available. So to imply that there is a balance or correlation between the function of the local authority as a housing authority and the implementation of criminal trespass law in Ireland is completely incorrect.
We note the statement ‘The legislation does not amount to a ban on all unauthorised encampments. It criminalises encampments that ‘substantially’ damage the land or prevent use of the land by the owner or other lawful users’. In fact, we understand this statement to be incorrect: the legislation in effect bans all unauthorised encampments (the only specific exception is to roadside encampments on minor road for the purposes of the Roads Act).
The focus in the sentence on the term ‘substantially damage’ the land is disingenuous as there are five grounds on which the offence is committed. It is not just about substantial damage. A person commits the offence where they bring or place on any land any object, where the entry or occupation or the bringing onto or placing on the land of such object is likely to: (i) substantially damage the land; (ii) substantially and prejudicially affect any amenity in respect of the land; (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity; (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe; or (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land. Any one or all of the above constitute the offence.
Insofar as the consultation is presenting the Irish legislation as a potential template for changes to the legislation in England and Wales, it is essential that consultees (who clearly cannot be expected to be experts on the situation in the Republic of Ireland) are given a correct and sufficient explanation of the legal position in the Republic so that they can properly assess it is as a template. This has clearly not been achieved in the consultation paper to such an extent that the consultation is misleading to consultees.
(2) Failure to identify reasonable alternative options
Secondly, we consider it is arguable that this consultation paper is fatally flawed because it fails to address a realistic alternative, namely that the perceived problems arising from such encampments and developments could be addressed by the provision of more permanent and temporary sites. It is true that the consultation paper asks consultees whether they can suggest ways in which more site provision could be facilitated in one of the last questions (question 19) of the paper but there is no suggestion that site provision is a viable alternative to the other options identified in the paper.
(3) Failure to comply with the public sector equality duty
Thirdly, we consider that the consultation paper does nothing to address the significant inequality of opportunity suffered by Gypsies and Travellers living on unauthorised sites. We question whether the Government undertook an equality impact assessment before it prepared the consultation paper and regard the failure to identify the realistic option of site provision throughout the paper as prima facie evidence that it has failed to comply with its public sector equality duty in accordance with section 149 of the Equality Act 2010.
In conclusion, for the reasons given above, we feel that this consultation paper is fatally flawed. It fails to present site provision as a realistic alternative option to the various suggested ways in which enforcement powers could be strengthened and misleads consultees on one of the main options advanced. It also seems to us to demonstrate a complete failure on the part of the Government to comply with its public sector equality duty.
In the circumstances we have come to the conclusion that this consultation is susceptible to challenge by way of judicial review and that it should be withdrawn and redrafted.
If you want a chat about this or need advice or want to bring forward a challenge, please contact the Travellers Advice Team on their advice line which is 0121 685 8677 ( Monday to Friday 9am to 5pm).
19th April 2018
 See also Greenberg Administrative Law: consultation, Westlaw 2 May 2017.
In November, BCC had accepted the full homeless duty to them, they had been in the hostel since. They were evicted without notice for allegedly having broken the hostel rules, of which there are many, including restrictions on residents’ freedom of movement and association. They were told that the Council had discharged its duty to house them. They could go to Newtown Neighbourhood Office, a 2 bus journey across town, to ask for a review and for accommodation pending review. They did this. Within an hour they were given a letter refusing their request for accommodation pending review. They were put out on to the street. A family including 3 year old twins and a baby!
They managed to persuade a friend to put them up for one night. The next day they tried to get help and advice. Shelter Birmingham did not have the capacity to take the case on. Legal Aid Housing Lawyers cannot cope with the demand. Shelter referred the family to us.
We wrote to the Council threatening an application for an injunction if accommodation were not provided. The Council’s Homeless Team agreed to accommodate ‘for one night only’. It was late in the day. We were told that the out of hours team had been alerted and would be sorting out the accommodation. We had the number. The Council’s Homeless Team went home.
By now other CLP team members had returned to the office. The out of hours number was on repeat dial but nobody was answering. In desperation we phoned social services out of hours number, given the very young children in the family. They refused to help. It was a matter for the Homeless Team not for them. But there are 3 year old twins and a baby in the family, what about the Children Act duties?
Then they played their ‘frighten them away’ card. They would look after the children but not the parents. We had anticipated this and had agreed with the parents that we would call their bluff. We asked them to make the arrangements to look after the children. They then backtracked and said they wouldn’t take any steps in relation to the children. They clearly never had any intention of so doing but used the empty threat to scare off our clients. When asked whether she had no safeguarding concerns about two 3 year olds and a baby being on the street the social worker was silent.
An out of hours injunction would serve no purpose as we had no way of serving it and nobody was answering the out of hours telephone. It was approaching 8.00 pm when our office building closes. We managed to secure a room in a hotel nearby for the family for the night.
On 30th March judicial review proceedings were issued and an interim order made that Birmingham City Council accommodate this family. Since then the Council has withdrawn the decision to discharge duty which led to the family being evicted on to the street and have agreed to make an offer of accommodation. That a family with such young children would be on the street without this legal action can’t be right. We are Legal Aid Housing Lawyers. This is what we, and others throughout the country, do. But we are few in number and the need for our services is great.
The Legal Aid Agency has just announced that in 39 areas of the country, including some of the most deprived, there is one or no organisation offering legal services to families such as the one in this case. Urgent steps should be taken to reverse this trend.
We tweeted about this case. This tweet has, at the date of writing this article, been viewed 330,729 times. There have been a very large number of retweets and responses. Most of those responses have been positive. We will give you some examples of the responses below:-
I know this type of case isn’t uncommon for you guys but the work you do is heroic.
The Children Act 1989 was enacted to protect children. For a local authority to not use its powers to help in such a clear case is wilful State neglect, is grossly inhuman and IMO illegal.
If anyone can look at three small kids being on the street and not do everything they can to help them then they’ve pretty much lost their soul, austerity or not austerity.
Birmingham City Council and the social workers should be ashamed of themselves.
Housing is an issue, but the duty social worker(s) should have found accommodation for the family. There absolutely would have been a hotel room somewhere – which there was.
When I was in Paris last year I was shocked to see families with babies sleeping in the street. I didn’t believe it could happen in this country…this is shameful and heart-breaking.
Shocking. Well done on your work and I am stunned any council would behave in this way.
This case should be shouted from the rooftops. Utterly appalling. Well done to CLP…
And, in addition, Lord Falconer tweeted in response as follows:-
Incredibly impressive account of what one of very few Legal Aid Housing practices does and why 39 areas of country have either one or no legal aid housing lawyer means many homeless families with small children have no one to hold local authorities to their housing duties.
Over recent years there have been reports of local authorities obtaining wide injunctions against unauthorised encampments. The latest example was Waltham Forest LBC v Persons Unknown where Lang J granted the final injunction on 12 January 2018. As usual, the defendants were not represented. TAT believe this type of injunction is potentially very challengeable on grounds including reasonableness and proportionality. We would be very interested in hearing from anyone adversely affected by such an injunction or any application for an injunction.
Davies v Hertfordshire CC  WLR(D) 1411, is not a Traveller case but is a useful reminder that, even where there is no security of tenure, a public law defence can be put forward to a possession action (in this case concerning Children Act 2004 section 11).
Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such (our emphasis).
It now reads:
Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.
As is evident, the effect of this change was to exclude those Gypsies and Travellers who have had to stop travelling permanently due to age, ill health, or educational needs. Many interested parties, including Community Law Partnership (CLP) on behalf of their clients, have been arguing ever since that the definition is discriminatory, prejudicial, unreasonable and disproportionate especially as regards those Gypsies and Travellers who are old, disabled, in serious ill health or caring for others.
The consultation received hundreds of responses, 48% of which were from local authorities and 28% from non-Gypsy/Traveller individuals. Chris Johnson of CLP has undertaken a detailed analysis of all responses to the Government consultation. Attached as an appendix to this paper are the details of our analysis. What follows is a discussion of the main themes – and problems – arising from it.
What was surprising to us was the level of opposition to the new definition.
At the commencement of this process we had thought that there would be far more responses in favour of the new PPTS and in favour of the new definition than there would be responses against. However, the figures were not in fact as far apart as we thought would be the case. There was a majority in favour of the new definition, but only just: 52%. There was a very significant minority against it: 33%. The position in respect of the new PPTS as a whole was even more equivocal, with 46% of respondents being in favour and 22% against. Interestingly it was not uncommon for respondents, especially local authorities, to be opposed to the new definition whilst being in favour of most of the rest of the proposed new PPTS.
Moreover, there was a great deal of concern about how the new definition would work in practice and as to the amount of extra work this would involve for local authorities. For example, many local authorities were concerned that they would be involved in substantial amounts of work in trying to ascertain whether planning applicants were or were not within the new definition and felt that it would be extremely difficult to come up with a conclusion.
We also noticed a number of problems with the consultation process:
(a) The central plank of the Government’s reasoning behind the introduction of the new definition was that it was intended to promote ‘fairness’ in the planning system. However there was no actual question directed to this issue. Respondents were not asked, for example, “Do you think that the new definition will promote fairness in the planning system?”. For this reason it is not surprising that only 6% of respondents directly addressed the question of fairness in the planning system (with 2% saying that the new definition will promote fairness and 4% saying that it will not). The consultation exercise does not therefore support the existence of a consensus that the new definition will promote fairness in the planning system.
(b) Though, of course, the Equalities Statement (see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/354062/Equalities_Statement__publication_format_140905.pdf) accepted that there was, on the face of it, discrimination against Romani Gypsies and Irish Travellers and against the elderly, the disabled and (often female) carers, there was no direct question about the possibility of discrimination. Therefore, once again, it is not surprising that only 8% of respondents addressed the question of discrimination against Romani Gypsies and/or Irish Travellers and only 5% of respondents addressed the question of discrimination against the elderly, the disabled and those that care for them. However, once again, given the lack of any direct question, we thought that these were not insignificant percentages in terms of people who have actually directed themselves to the question and answered it. In fact we would call this a relatively significant percentage of respondents.
(c) Many respondents took “intentional unauthorised occupation” to include unauthorised encampments and not (as it clearly was intended to be referring to) unauthorised developments. ‘Unauthorised encampments’ involve Gypsies and Travellers stopping without permission on land they do not own. ‘Unauthorised developments’ involve Gypsies and Travellers living on their own land without planning permission.
(d) There was a great deal of confusion about what the definition actually referred to. Obviously the change is to do with whether a Gypsy or Traveller has stopped travelling “permanently” but a surprising number of respondents seemed to be believe it was referring to permanent sites (as opposed to transit sites).
Given what is stated above, it can be seen that there was a surprising amount of misunderstanding about the Government’s reasoning and intentions and it is quite possible that this influenced the answers to questions.
Obviously it is difficult to assess to what degree these misunderstandings may have influenced the answers to questions but it is quite likely that there has been at last some influence in the way respondents answered questions as a result of these misunderstandings.
More significantly, the Government failed to gather any real evidence of whether respondents felt that the new definition would ‘promote fairness in the planning system’ or, alternatively, whether it would result in discrimination against certain groups.
Appendix – full analysis of the consultation responses
Please note that percentages of total number of respondents are shown below for each relevant category. In terms of the questions about being in favour or not of PPTS or partly in favour and the questions about being in favour or not of the definition or undecided, these do not add up to 100% since some respondents did not actually come to a relevant conclusion on these matters.
Is the respondent:
(a) A local authority 183 (48%);
(b) Another public authority 3 (1%);
(c) A Gypsy and Traveller Support Group 9 (2%);
(d) A law firm 1;
(e) A Barrister’s Chambers 1;
(f) Another type of organisation 42 (11%);
(g) An individual Solicitor 1;
(h) An individual Barrister 0;
(i) An individual Gypsy/Traveller or Travelling Showperson 12 (3%);
(j) Another individual 106 (28%);
(k) A Police Force 2 (1%);
(l) A Residents’ Association 7 (2%);
(m) A Planning Consultant 5 (1%);
(n) An MP 2 (1%);
(o) EHRC 1.
How many are in favour of the new PPTS?
How many are not in favour of the new PPTS?
How many are partly in favour of the new PPTS?
How many are in favour of the new definition?
How many are opposed to the new definition?
How many are undecided?
How many respondents feel that the current planning system is unfair in that it favours Gypsies and Travellers?
How many respondents feel that the current planning system is unfair because it does not assist Gypsies and Travellers?
How many respondents agree that the new definition is required to promote the need for fairness in the planning system?
How many respondents do not consider that the new definition will promote fairness in the planning system?
How many respondents consider that the new definition would discriminate against Romani Gypsies and/or Irish Travellers?
How many respondents consider that the new definition would discriminate against the elderly and/or the disabled and/or those that care for them?
 The Government figures, contained in their own response to the consultation, included 398 postcards from individual Gypsies and Travellers. We were not provided with copies of those so have not included them in our analysis but clearly they would have a significant impact on the figures.
The power to make PSPOs is contained within the Anti-Social Behaviour, Crime and Policing Act 2014. Section 59 states:
Power to make Orders
(1) A local authority may make a Public Spaces Protection Order if satisfied on reasonable grounds that two conditions are met.
(2) The first condition is that –
(a) Activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or
(b) It is likely that activities will be carried on in a public place within that area and that they will have such an effect.
(3) The second condition is that the effect, or likely effect, of the activities –
(a) Is, or is likely to be, of a persistent of continuing nature,
(b) Is, or is likely to be, such as to make the activities unreasonable, and
(c) Justifies the restrictions imposed by the Notice.
(4) A Public Spaces Protection Order is an Order that identifies the public place referred to in sub-section (2) (“the restricted area”) and –
(a) Prohibits specified things being done in the restricted area,
(b) Requires specified things to be done by persons carrying on specified activities in that area, or
(c) Does both of those things.
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order –
(a) To prevent the detrimental effect referred to in sub-section (2) from continuing, occurring or recurring, or
(b) To reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.
(6) A Prohibition or requirement may be framed –
(a) So as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;
(b) So as to apply at all times, or only at specified times, or at all times except those specified;
(c) So as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.
A PSPO can last for up to 3 years, can be extended under certain circumstances and its term can be extended more than once (ASBCPA 2014 Section 60).
A local authority can apply to vary or discharge a PSPO (ASBCPA 2014 Section 61).
In certain circumstances a PSPO can be made restricting public rights over a highway (ASBCPA 2014 Section 64).
The validity of PSPOs can be challenged. ASBCPA 2014 Section 66 states:
(1) An interested person may apply to the High Court to question the validity of –
(a) A Public Spaces Protection Order, or
(b) A variation of a Public Spaces Protection Order.
“Interested person” means an individual who lives in the restricted area or who regularly works in or visits that area.
(2) The grounds on which an application under this section may be made are –
(a) That the local authority did not have power to make the Order or variation, or to include particular prohibitions or requirements imposed by the Order (or by the Order as varied);
(b) That a requirement under this Chapter was not complied with in relation to the Order or variation.
This provides ‘interested persons’ as defined in Section 66 with a right to challenge the validity of a PSPO on the grounds that the local authority had no power to make it or on the basis that requirements have not been followed. ASBCPA 2014 Section 66(7) precludes the possibility of the making of a PSPO being challenged by way of judicial review; however, arguments that would normally be raised in a judicial review can be raised in a Section 66 challenge. It should be noted that there is a strict 6 week time limit in which to bring a Section 66 challenge and that time runs from the date that the local authority makes the PSPO (ASBCPA 2014 Section 66(3)).
ASBCPA 2014 Section 67 creates an offence of failing to comply with a PSPO and states:
(1) It is an offence for a person without reasonable excuse –
(a) To do anything that the person is prohibited from doing by a Public Spaces Protection Order, or
(b) To fail to comply with a requirement to which the person is subject under a Public Spaces Protection Order.
(2) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) A person does not commit an offence under this section by failing to comply with a prohibition or requirement that the local authority did not have power to include in the public spaces protection order.
A police constable or an authorised person may issue a fixed penalty notice if s/he has reason to believe that an individual has breached a PSPO (ASBCPA 2014 Section 68). If the penalty is not paid then the individual can be prosecuted for a breach of the PSPO in the Magistrates’ Court.
The defence in ASBCPA 2014 Section 67(3) is of significance and effectively gives an individual the opportunity to argue in the criminal proceedings that the PSPO could not lawfully be used to prohibit or restrict a particular activity, such as occupying an unauthorised encampment or rough sleeping for reasons which we outline below.
However, it seems unlikely that legal aid will be available in such proceedings and, in practice, it may prove to be extremely difficult for an individual to make out the defence without legal representation.
Alternatively, we consider that an individual may be able to challenge a local authority’s decision to use a PSPO to evict rough sleepers or the occupants of an unauthorised encampments by way of judicial review on much the same grounds with the benefit of legal aid and legal representation.
ASBCPA 2014 Section 72 requires that local authorities must have regard to rights protected by the European Convention on Human Rights and must consult before making a PSPO:
(1) A local authority, in deciding –
(a) Whether to make a Public Spaces Protection Order (under Section 59) and if so what it should include,
(b) Whether to extend the period for which a Public Spaces Protection Order has effect (under Section 60) and if so for how long,
(c) Whether to vary a Public Spaces Protection Order (under Section 61) and if so how, or
(d) Whether to discharge a Public Spaces Protection Order (under Section 61) must have particular regard to the rights or freedom of expression and freedom of assembly set out in Articles 10 and 11 of the Convention.
(3) The local authority must carry out the necessary consultation and the necessary publicity, and the necessary notification (if any) before –
(a) Making a Public Spaces Protection Order,
(b) Extending the period for which a Public Spaces Protection Order has effect, or
(c) Varying or discharging a Public Spaces Protection Order.
The Secretary of State may issue guidance (ASBCPA 2014 Section 73).
The Secretary of State issued guidance in 2014 which has been replaced by new guidance from the Home Office entitled Anti-Social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers – Statutory guidance for frontline professionals (December 2017).
The new guidance relating to the use of PSPOs is contained from pages 47 to 57.
In a diagram at the top of page 48 reference is made to activities which relate to: “alcohol”, “dogs”, and “noise”, which reflects the fact that PSPOs were intended to tackle anti-social behaviour arising from such sources.
At page 48 it is stated: “Given that these orders can restrict what people can do and how they behave in public spaces, it is important that the restrictions imposed are focused on specific behaviours and are proportionate to the detrimental effect that the behaviour is causing or can cause, and are necessary to prevent it from continuing, occurring or recurring”
At page 49 it is stated: “In deciding to place restrictions on a particular public space, councils should consider the knock on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area. Introducing a blanket ban on a particular activity may simply displace the behaviour and create victims elsewhere.”
There is specific guidance about controlling the presence of dogs and restricting alcohol at pages 52 and 53 of the guidance.
Very importantly, at page 51 it is stated: “Public Spaces Protection Orders should not be used to target people based solely on the fact that someone is homeless or rough sleeping, as this in itself is unlikely to mean that such behaviour is having an unreasonably detrimental effect on the community’s quality of life which justifies the restrictions imposed.”
Can a PSPO be used against Unauthorised Encampments?
A Gypsy or Traveller who has to resort to unauthorised encampments is “homeless” in statutory terms (see Housing Act 1996 Section 175 and Housing (Wales) Act 2014 Section 55). Given the fact that the Home Office guidance states that PSPOs should not be used to target people based solely on the fact that they are homeless (see above), it is clear that PSPOs should not be used to prevent unauthorised encampments on public land.
Obviously, there may be circumstances in which it could be said that the occupants of an unauthorised encampment are guilty of anti-social behaviour which has a detrimental effect on the quality of life of those in the locality and such behaviour may breach a PSPO. However, it is our view that a PSPO which prohibits unauthorised encampments as a matter of course would be unlawful.
Our position is reinforced by the fact that the legislation only permits local authorities to prohibit or restrict activities that are “unreasonable” (ASBCPA 2014 Section 59(3)(b)). In our view an unauthorised encampment could not, in itself, be said to be “unreasonable” without more.
It is recognised by a wide variety of organisations and by central government that the problem of unauthorised encampments is caused by the lack of authorised permanent and transit pitches and emergency stopping places and it is difficult to see how an unauthorised encampment could, in itself, sensibly be categorised as an “unreasonable” activity.
Challenging a PSPO which targets Unauthorised Encampments
An ‘interested person’ may challenge the making of a PSPO which targets unauthorised encampments by arguing that:
(a) the test for making a PSPO has not been met;
(b) the principles laid down by the House of Lords in South Buckinghamshire DC -v- Porter  2 AC 558 (with regard to planning injunctions) should be applied, i.e. that a judge should not uphold the validity of a PSPO unless s/he is satisfied that an individual should be subject to criminal prosecution for occupying an unauthorised encampment, notwithstanding the Convention rights engaged;
(c) such a PSPO would conflict with the Home Office guidance on the making of PSPOs and other government guidance on the management of unauthorised encampments, rendering a decision to seek a PSPO unlawful;
(d) the grant of such a PSPO would have a disproportionate impact on the ability of the Gypsy or Traveller concerned to live their way of life and would breach their rights protected by Article 8 of the Convention; and
(e) such a PSPO would disproportionately affect ethnic Gypsies and Travellers, and subject them to indirect discrimination without objective justification.
Finally, we note that legal aid should be available for challenges to PSPOs brought under ASBCPA 2014 Section 66.
However, in 2017, Brighton & Hove City Council brought in a PSPO which prohibited unauthorised encampments on 12 areas of land. We understand that Friends Families and Travellers have written to Brighton & Hove City Council to point out that its PSPO conflicts with the new Home Office guidance and to ask it to vary the PSPO accordingly. If the Council refuses to do so then it could be subject to judicial review.
If a local authority takes a decision to make a PSPO which prohibits unauthorised encampments or rough sleeping then it can be challenged within the 6 weeks’ time limit on the basis that PSPOs cannot and should not be used to target such activities.
Alternatively, if no Section 66 challenge is brought, then Gypsies and Travellers and rough sleepers may be able to challenge by way of judicial review a local authority’s decision to use its PSPO powers to evict them. Alternatively, they may be able to defend any prosecution for an alleged offence of the breaching of a PSPO on similar grounds to those which could be raised in a Section 66 challenge.
We recommend that the following steps are taken for the reasons set out in this briefing paper:
The legal aid regulations relating to the payment for work done on judicial review claims pre-permission should be withdrawn and legal aid should be reinstated for judicial review subject to the usual merits criteria and eligibility provisions;
Trespassers are brought back within the definition of ‘loss of home’ for the purposes of legal aid;
As proposed by the Low Commission, Housing Law should be brought back within scope for legal aid;
As the Low Commission also recommended, there should be an urgent radical overhaul of the provision of Exceptional Funding.
The issues mentioned below affect the human rights of Gypsies and Travellers especially due to the lack of authorised sites and problems on rented sites ( article 8) and the need for a fair hearing ( article 6).
During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were settled successfully prior to the permission application being determined. . Despite this, the Government has now brought into force provisions which mean that legal aid providers will not be paid on a judicial review application unless permission is granted, the court orders an oral hearing or, if the matter is settled prior to permission without costs being awarded to the claimant, at the discretion of the Legal Aid Agency. These changes will have a chilling effect as legal aid providers simply do not have the financial resources to take on work ‘at risk’ and, as indicated by the difficulties of obtaining Exceptional Funding (discussed below), the potential for the Legal Aid Agency to exercise its discretion in the provider’s favour offers little comfort.
Judicial review, obviously, provides a means by which people can hold public authorities to account with regard to unlawful actions and decisions. It leads to an improvement in public authority decision making processes. The changes to judicial review funding may mean that many providers will no longer take judicial review cases. The possibly disastrous effect on the rule of law of these reforms is obvious. Gypsies and Travellers are some of the most vulnerable members of our society and an inability to challenge an unlawful decision by a public body may put them at a particular disadvantage.
Loss of Home
‘Loss of home’ remains within scope for legal aid but ‘trespassers’ are excluded from the definition of ‘loss of home’. This means that Gypsies and Travellers on an unauthorised encampment facing county court eviction action by a local or other public authority where that authority are acting unlawfully (e.g. by flouting government guidance on welfare assessments) will be unable to get legal aid to defend that action in the county court.
The Low Commission on the Future of Advice and Legal Support was established to develop a strategy for access to advice and support on Social Welfare Law in England and Wales. The Low Commission was chaired by Lord Colin Low and was made up of eight other Commissioners with expertise in this area. The Low Commission was independent of Government, political parties and advice providers.
The Low Commission called for the return of legal aid in Housing Law cases (see Low Commission Tackling the Advice Deficit, January 2014). Importantly this would include cases under the Mobile Homes Act 1983.
Mobile Homes Act 1983
In 2011, six years after the European Court of Human Rights judgment in the case of Connors v UK (2005), the Government finally amended the law to give proper security of tenure to those Gypsies and Travellers living on local authority run caravan sites by amending the Mobile Homes Act (MHA) 1983 so that it covered those sites. However, that positive step was undermined when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 came into force. It stipulated that only possession actions and serious disrepair cases under MHA 1983 remain within scope for legal aid. It follows that many Gypsies and Travellers living on local authority sites will now find themselves unable to enforce the important rights they have been given under the MHA 1983 because most MHA 1983 disputes are now out of scope for legal aid.
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on Section 10 of the Bill, and the possibility of exceptional cases funding (ECF) being granted when circumstances required. The Government stated that ECF would act as a vital safety net and indicated that it was intended to ensure that the failure to provide advice and representation to someone does not result in a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing) and does not breach European Union Law.
The Court of Appeal found the Lord Chancellor’s Guidance on Exceptional Funding to be unlawful in the case of R (Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor  EWCA Civ 1622, 15 December 2014.
The Government thereafter made amendments to the Guidance.
In The Director of Legal Aid Casework and the Lord Chancellor – v – IS  EWCA Civ 464, Court of Appeal, 20 May 2016, the Court of Appeal overturned, by two lord justices to one, the judgment of Collins J that, despite the amendments, the system was still systemically unfair and unlawful.
In his dissenting judgment, Briggs LJ would have upheld Collins J’s Judgment. He stated:
It is in my view the combination of those two features, namely an application process which is in accessible to most LIPs [ litigants in person] and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, which makes the ECF scheme inherently defective and therefore unfair…..
It is notorious that, despite their laudable and valiant endeavours, those lawyers who offer to work pro bono for deserving clients are insufficient to meet anything approaching the demand for their services, so that there must be (however difficult to quantify) a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the legal assistance necessary for them to do so.
ECF ought to be available to cover matters involving: housing benefit; Gypsy and Traveller planning inquiries; disrepair issues on Gypsy and Traveller sites which need to go to tribunal; other claims under the MHA 1983. Many, many hours of solicitors’ and advisers’ time has been spent in attempting to get ECF. Increasingly solicitors and advisers are understandably unwilling to even try for ECF. It is absolutely clear to us that, in these cases, Article 6 is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (the case of Airey v Ireland refers).
The reduction in scope of legal aid has led to situations where Gypsies and Travellers are being evicted unlawfully and are otherwise being denied access to justice. We believe that the predictions that this will lead to increased costs in the end are already being proved correct. At the same time, the purported safety net of ECF has proved to be illusory but, in the process, has led to barristers, solicitors and advisers wasting vast amounts of time in fruitless attempts to obtain ECF. This, in turn, is now leading to a situation where legal aid providers are no longer willing to even attempt to obtain ECF. We believe that the Government may well be very happy with this result and we also believe that ECF was never really intended to provide a proper safety net.
We fully support the Low Commission’s call for the return of legal aid in Housing Law cases. The Low Commission has also recommended that there be a radical overhaul of the provision of EF. That overhaul should take place without delay. We also support the recommendations contained in the report of the Bach Commission Access to Justice.