My eleventh story of injustice, like the first, relates to the way new legislation has made justice even more inaccessible to those who prefer to live in caravans/ mobile homes.
My first story showed vividly the injustice that may be caused by Parliament’s refusal to allow a site-owner’s breaches of the Mobile Homes Act 1983 to remain in scope for legal aid. This story illustrates the injustice that may occur because it is now so difficult to find solicitors who are willing to bring applications for judicial review “at risk” although this is the only method by which a New Traveller may challenge a local authority’s unlawful decision under the homelessness legislation.
How the judicial review reforms stopped children from having a settled school career
Mr and Mrs H are New Travellers who have to resort to roadside encampments with their two children due to the lack of authorised sites and the lack of vacant pitches in the areas they normally resort to. They have been desperately trying to get an authorised pitch. The children have been missing a lot of school and Mr and Mrs H had hoped that, if they could find an authorised pitch, the children would be enabled to go to school and their educational chances would greatly improve. Additionally Mrs H has been suffering from severe depression due to frequent evictions and the problems with getting the children to school.
A local support group suggests that they make a homelessness application since they are homeless under the provisions of the Housing Act 1996 as they do not have anywhere where they are entitled or permitted to place their caravans. The local authority they apply to refuses to take an application because it considers that they already have a home i.e. their caravan.
This is unlawful. The only way to challenge this action is by way of judicial review.
Mr H is a wood carver but, due to frequent evictions, he has not been able to sell many of his carvings recently and he is on such a low income that the family are financially eligible for legal aid. However, they have great difficulty in trying to find a solicitor to take on this matter ‘at risk’.
By the time Mr and Mrs H find a solicitor who is willing to attempt to make a judicial review application, it is four months after the local authority refused to take the homelessness application. A judicial review application needs to be brought promptly or within 3 months. Nevertheless their solicitor manages to obtain legal aid and lodges a judicial review application asking for permission to proceed with the application out of time.
The matter comes before a High Court judge who looks at the matter on the papers and refuses permission for the matter to proceed because of the delay. Although there is then an automatic right to go to an oral hearing, the solicitor tells Mr and Mrs H that he is not willing to take that step because it will be expensive and the barrister whom he employs and his firm may not be paid for going to the hearing.
Mr and Mrs H have no alternative but to continue on roadside encampments and the children continue to have problems in attending school as a result.
This story was told to the Bach Commission by the Travellers’ Advice Team at Community Law partnership. They also told us:
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 successfully settled prior to permission being considered by the court. Despite this, the Government brought into force provisions which mean that legal aid providers would not be paid on a judicial review application unless either permission was granted or the matter was settled prior to permission without costs being awarded to the claimant and the Legal Aid Agency exercised their discretion in favour of the legal aid provider.
Following the successful challenge in the case of R (Ben Hoare Bell and Others) – v – the Lord Chancellor  EWHC 523 (Admin), the regulations were changed to bring in a few exceptions but it remains the case that a legal aid provider will have to begin a case entirely at risk in terms of costs and this is clearly dissuading a number of such providers from taking on these vital cases.
Judicial review is an essential tool for Gypsies and Travellers who are seeking to challenge unlawful actions of local and public authorities.
The Mary Ward Legal Centre told us:
Judicial review is now funded only if the case gets permission from the court (unless the claim is not issued at all). This can act as a deterrent for providers who will not take the risk on issuing what may actually be a perfectly good claim.
While it was understandable that a judge might be unwilling (on paper) to permit this application to proceed out of time, the reason for the four month delay was that it was so difficult for an impoverished wood-carver to find a solicitor who was willing to make a judicial review challenge “at risk” in a fairly specialised corner of the law.
As a result of all this the children’s schooling suffered. Is this justice?