Smith v Secretary of State for Levelling Up, Housing and Communities & Anor

Court of Appeal, Sir Keith Lindblom, Holroyde and Coulson LJJ, [2022] EWCA Civ 1391, 31 October 2022

The claimant/ appellant successfully appealed the refusal of her application to quash a decision dismissing her appeal against a refusal of her application for planning permission for a permanent site for Gypsies and Travellers. The definition of “Gypsies and Travellers”, set out in the policy document “Planning Policy for Traveller Sites” (“PPTS 2015”) had been amended in 2015 to remove the express inclusion within the category of “Gypsies and Travellers” of those who permanently ceased to travel as a result of, inter alia, disability or old age. The effect of the exclusion was that the claimant was not regarded for planning purposes as a Traveller. The defendant had conceded, and the High Court had accepted, that the definition of “Gypsies and Travellers” indirectly discriminated against elderly and disabled Gypsies and Travellers but concluded that the discrimination was justified. In so doing the Judge had referred to the need for very weighty reasons to justify disability discrimination and to the test for justification in Bank Mellat v HM Treasury [2013] UKSC 38 & [2013] UKSC 39. He had also referred to the decision in Christian Institute v Lord Advocate [2016] UKSC 51 in which Baroness Hale, Lord Reed and Lord Hodge had referred to the “high hurdle” which faced anyone who sought to mount an “ab ante challenge to the validity of legislation on the basis of a lack of proportionality”.

The Court of Appeal allowed the claimant’s appeal. It ruled that the judge below had erred in his reliance on Christian Institute because (§49) “this was not a blanket challenge to legislation or policy, the proportionality of which was being attacked on theoretical or hypothetical grounds … [but] a very different case involving, not a hypothetical challenge, but a challenge affecting real people in the particular circumstances of the case in hand”. It was, further, a case in which indirect discrimination had been admitted, the burden of justification therefore falling squarely on the defendant (§52, and note the distinction drawn at §§50-51 between this case and the sort of challenge referred to by Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 (see previous post)). If the approach of the High Court had been correct, “it would mean that the so-called “high hurdle” would apply in all – or at least most – claims for indirect discrimination. Most such claims are based, in one way or another, on some element of legislation or policy. It is not the law that, in such claims, despite the admission of discrimination, the claimant must demonstrate that the measure was wholly incapable of lawful operation” (§54).

The Court also ruled that the Judge below had erred in refusing to allow the claimant to rely on race discrimination because in his view the claim had not been pleaded. The claimant’s ethnicity was “an inherent element of this case from the outset”, although “not expressly raised in the claim form” (§§62-65) and “the nature of the discrimination before the judge was the negative impact on those Gypsies and Travellers who had permanently ceased to travel due to old age or illness, but who lived or wanted to live in a caravan. This discrimination was inextricably linked to their ethnic identity” (§66):

  1. It might be said that adding the additional protected characteristic of race/ethnicity may not make any real difference, given that the burden here remains on the Secretary of State to justify the indirect discrimination in any event. We do not consider that to be right, for two reasons. First, as Mr Willers and Mr Wolfe submitted, ethnicity is, at least potentially, bound up with age and disability discrimination in this case. But more importantly, it seems to us that ethnicity is a significant element in the need for justification. We note that in the consultation document (referred to below) prior to PPTS 2015, at paragraph 2.4, the Secretary of State said that the relevant exclusion “is not about ethnicity or racial identity”. That was perhaps a surprising statement in the circumstances and, for the reasons we have given, we consider it to have been incorrect.

Appellant/ claimant: Marc Willers KC and Tessa Buchanan, instructed by Deighton Pierce Glynn

Respondent/ defendant: Timothy Mould KC, instructed by Treasury Solicitor

Interveners: David Wolfe KC, Owen Greenhall and Tim Jones (written submissions only)

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