Marc Willers analyses the impact of a High Court ruling which gave an important judgment on the provision of care for nomadic Gypsy and Traveller children.
Just before Christmas 2013 the High Court gave an important judgment in R (J) -v- Worcestershire CC & EHRC  EWHC 3845 (Admin) – a judicial review case which will help ensure that disabled Gypsy and Traveller children who rely on the provision of care by their local authority will continue to receive that care when their families travel to other parts of the Country.
The claim for judicial review was brought by a Romani Gypsy father on behalf of his disabled three-year-old son (J).
W had lived in caravans and travelled all his life. He travels regularly to funfairs with his family in order to earn his living running a helter skelter and bungee trampoline. The family had their winter base in Worcestershire. J has Down’s syndrome and other complex medical problems, with developmental delay and is a ‘child in need’ for the purposes of s17 Children Act (CA) 1989. The Worcestershire County Council accepted that the family needed some form of respite care but decided that the statutory provision did not give it the power to fund such provision once the family left its borders and crossed into another local authority’s area.
The claimant challenged the council’s decision and argued that its interpretation of s17 CA 1989 was wrong. His claim was supported by the Equality and Human Rights Commission (EHRC) which was represented by Jan Luba QC of Garden Court Chambers. He drew the court’s attention to the EHRC’s own research which demonstrated that Gypsy and Traveller children suffered inequalities and experienced discrimination across a range of policy areas, including the provision of healthcare and social services. The EHRC argued that the interpretation of s17 CA 1989 should be compatible with international Conventions including:
- Article 8 of the European Convention on Human Rights (the ECHR), which placed positive obligations on the United Kingdom to enable disabled children to play a reasonably full part in society and enjoy an adequate family life and to facilitate the Gypsy way of life; and
- Article 3 of the UN Convention on the Rights of the Child, which provides that the best interests of the child should be a primary consideration whenever decisions are made which affect children.
The court’s decision
Mr Justice Holman began his judgment in the following terms:
Everyone loves a funfair. They are part of the tapestry of our national life. But there would be no funfairs without the travelling families who own the rides and amusements, erect them, man them, and then take them on to the next site or pitch. This case concerns one such family, but all counsel agree and submit that the issue which arises is one of widespread and general importance to all local authorities and many travelling or itinerant families.
Later in the judgment, he stated:
It must be a hard life and a hard working one, but it is a good life and an honourable one, which brings fun and joy to many people. And it is the life of the family’s culture and choosing.
In the event Mr Justice Holman declared what had generally been understood to be the case: that a local authority does indeed have the power under s17 CA 1989 to provide services to a ‘child in need’ even if the child happens to be outside the local authority’s geographical area at any particular time. The judge reached that conclusion without the need to rely upon Article 8 of the Convention or Article 3 of the UN Convention.
The impact of the decision
From the perspective of the claimants and other itinerant Romani Gypsy, Traveller and Travelling Showpeople families who have disabled children it means they can travel in accordance with their traditional way of life without fearing the loss of essential services to meet their health and educational needs.
Local authorities will need to recognise the existence of this power and ensure that they consider exercising it in the case of any child in need who may, for one reason or another be residing temporarily outside their area – for example, because the child is a member of a nomadic Romani Gypsy or Traveller family (as in this case) or is staying temporarily in another area (for example, whilst attending an educational facility or medical establishment or perhaps as a result of some family circumstance).
Local authorities will have to consider all the options for supporting children in need that are members of itinerant Gypsy and Traveller families when they travel (as well as those living temporarily in another area for other reasons). Obviously, their policies should be adapted to suit the needs of such families having regard to the best interests of the children who might be affected.
Local authorities must also remember that Romani Gypsies and Irish Travellers are separate ‘ethnic’ groups for the purpose of our equality legislation and are protected from discrimination on grounds of race as a consequence. Travelling to find and undertake work is still an integral part of the traditional way of life for many members of these communities (notwithstanding the fact that draconian legislation and a shortage of stopping places has made it much more difficult to lead a nomadic way of life in recent years) and local authorities should ensure that their policies are carefully assessed to ensure that they comply with the public sector equality duty and do not discriminate against Gypsies and Travellers in circumstances where they pursue this aspect of their way of life.
Those advising Gypsies and Travellers should scrutinise the policies and decisions of local authorities to assess whether the public body in question has complied with its public sector equality duty and whether they have a disproportionate effect on their clients.
More particularly, where it appears that a member of an itinerant Gypsy or Traveller family may be a disabled person, the advice should be that a request is made for an assessment of ‘need’ to be undertaken in accordance with the CA 1989 and/or the adult community care legislation (as well as a carers’ assessments for family members who provide a substantial amount of care on an unpaid basis); in the event that the local authority accepts that it has a duty or power to make provision of services then those advising Gypsies and Travellers should ensure that provision is made whilst the family travels beyond its boundaries.
This decision may have an impact on the exercise of other community care duties and powers. For instance, local authorities have a duty under s2 Chronically Sick and Disabled Persons Act 1970 to provide help and support to disabled children and adults which will facilitate their living arrangements. Logically, that duty should apply to members of itinerant Gypsy and Traveller families when they travel (as well as those living temporarily in another area for other reasons).
Whether the decision will have wider implications is more difficult to assess. Mr Justice Holman did not need to rely upon Article 8 of the ECHR or the positive obligation to facilitate the Gypsy way of life in order to justify his decision. However, there are likely to be other instances where legislation and/or decisions taken by public authorities will have a disproportionate and discriminatory impact on itinerant Gypsies, Travellers and Travelling Showpeople and their families and be susceptible to judicial review. Such circumstances are most likely to arise in the context of the adoption and implementation of policy for the provision of caravan sites for Gypsies and Travellers and in the exercise of planning enforcement.