The Family Test
Above: a family of Irish Travellers in Co. Cork, Ireland, 1954. Source: National Library of Ireland via Wikimedia Commons
By SIMON RUSTON
- New "families test" supposed to make sure new laws and policies support stable families
- However, government also plans to narrow the definition of "gypsies and travellers"
- Travellers could be forced to choose between caring for relatives and continuing traditional way of life
GYPSIES and Travellers often live within extended family groups, and family life is a key component of their nomadic culture. ‘The Family Test’, new guidance which is intended to support families, was announced by the Secretary of State for Work and Pensions, Iain Duncan Smith, on the 31 October 2014. The press release stated:
For the first time ever, the new guidance sets out 5 questions that all policy or legislation across government needs to address before it can be agreed by ministers. The guidance has been drawn up in consultation with families groups. This approach makes clear that all departments need to fully understand how government policies support strong family relationships and will allow departments to identify and take action to address any policies that could undermine them.
It is clear that the Government see this as a key component of policy and law making, stating in the guidance:
Using this guidance to apply the Family Test should be thought of as part of the process of good policymaking, not a discrete step in the process (p.3)
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The test should not be thought of as just a discrete requirement in the process of developing new policy. To do so would undermine the contribution that a family perspective can bring to policy development, and render the process as a ‘box ticking’ exercise or bureaucratic hurdle (p.4)
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Policy makers should think about family impacts in a similar way to how they consider impacts on equality as required by the Public Sector Equality Duty [PSED], considering impacts at each stage of the process. However, while analysis under the Family Test might complement the consideration of equality impacts, the two are separate responsibilities with the equality considerations required by law (p.5).
On the face of it, it would seem that the Government are serious in attempting to ensure that the impact on families of policy or law is to be properly considered. It is also interesting to note that the guidance identifies a clear connection between the Family Test and the PSED:
The family test can complement the existing work by Departments to consider the three aims of the PSED…. Applying the family test and complying with the PSED should lead to better overall outcomes for people (p.6).
Significantly, the guidance also emphasises the need for the application of the Family Test to be documented:
It is important that the application of the Family Test is documented in an appropriate way as part of the policy making process. Where a detailed assessment is carried out, departments should consider a standalone document to bring together their analysis. Departments should consider publishing assessments where they are carried out, and where policy is being submitted for collective agreement through the Cabinet Committee process, the assessment should be included alongside other policy documentation (p.5).
The Family Test could have a serious impact on policy and law relating to Gypsies and Travellers. In particular it should be given due regard when the Government considers amendments to the existing planning policy on the provision of sites for Gypsies and Travellers which is currently contained in Planning Policy for Traveller Sites (PPTS).
Likewise, the Family Test would have implications for the planning definition of Gypsies and Travellers (and Travelling Showpeople). The current definition is at annex one of PPTS where it is stated:
For the purposes of this planning policy “gypsies and travellers” means:
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 showpeople or circus people travelling together as such.
For the purposes of this planning policy, “travelling showpeople” means:
Members of a group organised for the purposes of holding fairs, circuses or shows (whether or not travelling together as such). This includes such persons who on the grounds of their own or their family’s or dependants’ more localised pattern of trading, educational or health needs or old age have ceased to travel temporarily or permanently, but excludes Gypsies and Travellers as defined above.
The Government proposes that the planning definition of ‘travellers’ (as they insist on describing Gypsies, Travellers and Showpeople) should be amended to remove the words “or permanently” and to limit it to those who have a nomadic habit of life. The Government recognises the implications of this policy in the Equalities Statement which accompanied the consultation:
This proposal would impact on those Gypsies and Travellers who have given up travelling permanently for whatever reason, but in particular on the elderly who no longer travel due to reasons related to ill-health or disability. Similarly, it would also impact on children and young people including those with disabilities or special educational needs who use a settled base in order to access education; as well as women who have ceased to travel in order to care for dependents (sec.3).
However, they go on to state:
The Government is fundamentally of the view that where travellers have given up travelling permanently, they should be treated in the same way as other members of the settled community for planning purposes (sec.3).
Questions 2 and 3 of the Family Test (p7 of the guidance) are of particular relevance to the proposed amendments to the definition:
2/ What kind of impact will the policy have on families going through key transitions such as becoming parents, getting married, fostering or adopting, bereavement, redundancy, new caring responsibilities or the onset of a long-term health condition?
There are many reasons why Gypsies and Travellers may have to cease travelling permanently. Some of these will fall squarely within the ambit of question 2. For instance, a Travelling family who have a child with special needs who will require life long care may need to cease travelling permanently; or a person suffering from a long term health condition will also have to potentially cease travelling. The implication of the proposed amendment is that such people will no longer be able to live on a Gypsy or Traveller site.
3/ What impacts will the policy have on all family members’ ability to play a full role in family life, including with respect to parenting and other caring responsibilities?
The guidance states that:
All family members have a role to play in family life, whether that is the role fathers play in raising children, that grandparents play in supporting parents, including lone parents, or that the adults play in caring for elderly relatives or disabled family members (p.7).
As noted above, the proposed amendment to the definition of Gypsies and Travellers could severely impact on the ability of families and extended families to provide care and support in certain situations. For instance, a small family group where full time care is required for some members would mean that those making such provision would no longer fall within the definition and would be disenfranchised as a result of the need to provide care. As such, they would be made to choose between the needs of the family member for whom they care and their ability to live in accordance with their traditional way of life.
Given that the Secretary of State for Communities and Local Government (SSCLG) has recently been found by the High Court to have not considered properly the PSED in the context of the recovery of Gypsy and Traveller planning appeals (Moore and Coates v SSCLG ) it is to be hoped that the Government will give both the PSED and the Family Test proper consideration before any decision is taken to amend the definition.
However, if the proposed changes to the definition are adopted, then those representing Gypsies and Travellers should consider whether the Government’s amendments comply with the PSED and the Family Test and whether they ought to be challenged by way of judicial review.
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The author thanks Chris Johnson of the Travellers Advice Team at Community Law Partnership and Marc Willers QC of Garden Court Chambers for their comments on this article. The article also appears in the Travellers Advice Team news.
Dr Simon Ruston MRTPI is a chartered town planner specialising in Gypsy, Traveller and Showpeople cases. He can be contacted on 0117 325 0350 / 07967 308752 or by e-mail at: simon@rustonplanning.co.uk