Possession claims by public landlords can be met with a defence raising a public law challenge. Such a challenge is not limited to conventional judicial review grounds. It is open to a defendant to contend that the possession proceedings are a disproportionate interference with his rights under the European Convention on Human Rights or constitute unlawful discrimination in breach of statute. Further, a defendant may defend a possession claim on the ground that the local authority is in breach of its duty in respect of the welfare of children under sections 11 or 28 of the Children Act 2004.
Section 101 of the Housing (Wales) Act 2014 imposes a duty on Welsh housing authorities to carry out an assessment of the accommodation needs of Gypsies or Travellers residing or resorting in their area. In accordance with its statutory duties, Newport City Council carried out such an assessment and then allocated land at Ellen Ridge for social provision of a site for Gypsies and Travellers. The council adopted an Allocation Policy to allocate pitches on the Land. Mr McDonagh and his family were Irish Travellers. McDonagh’s request for a pitch was considered under the Allocation Policy and rejected on 2 July 2019. On 4 July 2019 McDonagh and members of his family forced entry on to the land. All the defendants admitted that they were trespassers but claimed to be able to defeat the claim for possession by means of a public law defence.
Their defence failed before the district judge and a possession order was made. Although Judge Keyser QC agreed that the council had fulfilled its duties under the HWA he set aside the possession order to allow McDonagh to argue that the decision to bring possession proceedings was unlawful (McDonagh v Newport City Council [2020] EW Misc 5 (CC); PP 2020/86) Following that appeal the council conducted a review of its decision to continue to seek possession. That review concluded that possession was reasonable and justified.
The full possession hearing came before Judge Keyser in Newport City Council v McDonagh and others [2021] EW Misc 9 (CC). Despite directions being given, McDonagh had filed no formal defence. This failure was said to be a consequence of his Legal Aid but the unavailability of Legal Aid does not excuse a litigant from complying with Civil Procedure Rules 1998 or court orders. Therefore while he was permitted to ride on the coat tails and take advantage of grounds that had been advanced by other family members (who had filed defences and been joined as defendants), McDonagh was not permitted to rely on any ground the circumstances of which were peculiar to himself.
There was no suggestion that the council’s policy was unlawful or that the Allocation Policy had been unlawfully applied. What was essentially argued was that although the defendants had no accommodation needs that the council was under a duty to meet because the defendants had shown an intent to continue occupying unlawful encampments and because that resulted from their cultural heritage as Travellers, they should for some (unspecified but temporary) period be tolerated as trespassers on land in respect of which they had no rights of occupation. This argument was rejected. The prevalence of a particular kind of law-breaking did not mean that the council should tolerate it. The council had considered whether it should utilise alternatives to possession and decided that it should not – this was a conclusion reasonably arrived at. The judge was not impressed with any suggestion that there was a failure to consider the welfare of children at the time proceedings were commenced and that the claim must therefore be dismissed. It was an example of the unhappy tendency in possession cases for lawyers to trawl through every conceivable legal point and present them without any thought to reality. Further, there was no breach of any Convention rights and simply no evidence of any breach of a duty under the Equality Act 2010.
Elizabeth Haggerty, barrister
