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HOUSING LAW CMG Conference - 26 June 2019

HOUSING LAW CMG Conference - 26 June 2019. David Browne BL. Outline and Scope. International instruments and ECHR rights Constitutional and legislative proposals in Ireland Unenumerated rights Social housing case-law Homeless accommodation Defects in housing Traveller accommodation.

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HOUSING LAW CMG Conference - 26 June 2019

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  1. HOUSING LAWCMG Conference - 26 June 2019 David Browne BL

  2. Outline and Scope • International instruments and ECHR rights • Constitutional and legislative proposals in Ireland • Unenumerated rights • Social housing case-law • Homeless accommodation • Defects in housing • Traveller accommodation

  3. Constitutional Right to Housing – International Context • More than 50 countries have a right to housing enshrined in their Constitution • Requires States to both positively support the right to housing and to refrain from interfering with rights • e.g. South Africa’s Constitution protects everyone’s right to access adequate housing • Government of the Republic of South Africa and Others v Grootboom and Others (October 2000) • Vulnerable people living in extreme conditions of poverty, homelessness or intolerable housing should be given priority access to housing.

  4. International Covenant on Economic, Social and Cultural Rights • Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) • States Parties recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions • Must take appropriate steps to ensure the realization of this right • 1991 Committee – right to housing should not be equated with a roof over one’s head • UN Committee on Economic, Social and Cultural Rights recommendations (2015)

  5. Committee Recommendations • Security of tenure • Availability of services, materials, facilities and infrastructure • Affordability • Habitability • Accessibility • Location (in relation to employment, education, health and social opportunities) • Cultural Adequacy

  6. Other International Covenants • Article 27(3) Convention on the Rights of the Child • Convention on the Elimination of All Forms of Discrimination Against Women • African Charter on Human and People’s Rights • SERAC and CESR v. Nigeria (African Commission on Human Rights, Case No. 155/96)

  7. European Convention Rights • Article 8 of the European Convention on Human Rights (ECHR) states that everyone has the right to respect for his private and family life, his home and his correspondence • Article 6 (right to a fair public hearing) • Article 13 (the right to an effective domestic remedy) • Article 14 (prohibition on discrimination) • Article 16 of the European Social Charter - Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing

  8. Protection of ECHR Rights • Connors v UK (2005) 40 EHRR 9 • Eviction of gypsies from halting site by local authority • Lack of requisite procedural safeguards - requirement to establish proper justification for the serious interference with rights • Could not be regarded as justified by a ‘pressing social need’ or proportionate to the legitimate aim being pursued

  9. Protection of ECHR Rights • Moldovan & Ors. v. Romania (No.2), 12 July 2005 (Appl.nos. 41138/98 & 63420/01) • Living conditions experienced by the applicants (in combination with the racism they were subjected to during national proceedings) • Minimum level of severity such as to constitute ‘degrading treatment’ within the meaning of Article 3 ECHR

  10. ECHR and Housing Case-law • Chapman v. United Kingdom (2001) 33 E.H.R.R. 18 • Article 8 ECHR does not in terms give a right to be provided with a home nor has the Court acknowledged such a right. • Held that while it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision.

  11. ECHR and Housing Case-law • There is no right to be provided with a home of one’s choice, nor are there any positive obligations to provide alternative accommodation of an applicant's choosing • Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442 • Marzari v. Italy (1999) 28 E.H.R.R. CD 175 • Although Article 8 does not guarantee the right to have one's housing provided by the authorities, a refusal of the authorities to provide assistance to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 because of the impact on the private life of the individual

  12. ECHR and Housing Case-law • There is no right to live in a particular location: Garib v. the Netherlands • Whilst Article 8 protects individuals against interference by public authorities, it may also entail the State’s adoption of measures to secure the right to respect for one’s “home”: Novoseletskiy v. Ukraine • Member States are required to weigh up the competing interests at stake (Hatton and Others v. the United Kingdom)

  13. Application of ECHR in Irish Case-law • Article 8 does not create a positive obligation on the part of a local authority to provide a home • Doherty v. South Dublin County Council & Ors. (No. 2) [2007] 2 I.R. 696 • A failure or refusal by the respondent to provide the applicants with a suitable home does not amount to a breach of Article 8 ECHR • O’Donnell v. South Dublin County Council [2015] IESC 28 

  14. Constitutional and Legislative Proposals in Ireland • Thirty-fifth Amendment of the Constitution (Right to Housing) Bill 2017 – PMB • Bill defeated on 21 September 2017 • United Nations Special Rapporteur for adequate housing (July 2018) • Government announced in December 2018 that there was no plan to enshrine the right in the Constitution • Thirty Fifth Amendment to the Constitution (Right to a Home) Bill 2019 • Introduced by Sinn Fein in May 2019

  15. Unenumerated Rights • Article 40 (right to privacy) • Article 43 (right to ownership of private property) • Common good in Preamble • Courts have moved away from identifying unenumerated rights (right to bodily integrity, the right to marry and the right to earn a living) - judicial restraint • Merriman & Friends of Irish Environment v Fingal County Council [2017] IEHC 695 (right to healthy environment)

  16. Social Housing Case-law • Right to apply for housing, and to have application considered • Carries a corresponding duty to reasonably consider request and to come to a decision that is soundly and rationally based. • Obligation of a housing authority is to respond to a need not a want. • No unfettered right to an applicant for housing to veto a rational choice made by the housing authority, or to choose accommodation.

  17. Social Housing Case-law • McDonagh & Ors. v. Clare County Council & Anor. [2004] IEHC 184 (Smyth J.) • Right of an applicant for housing to have his or her application considered is not an absolute and unconditional right • “resource dependent” • Fingal County Council v. Gavin & Ors. [2007] IEHC 444 (Peart J.) • Function of local authority to manage resources and determine priorities

  18. Social Housing Case-law • Doherty v. South Dublin County Council & Ors.(No.2) [2007] 2 I.R. 696 • Function of local authority to manage its resources and to set the priorities • Obligation on the part of the local authority to consider an application for housing had to be made in the context of the resources available • Duty constrained and must be understood in the context of available resources: • Housing authority only has obligations in accordance with its resources and according to the scheme of priorities set out by it

  19. Social Housing Case-law • Kinsella v Dun Laoghaire Rathdown County Council [2012] IEHC 344 • Receipt of social housing assistance from one local authority • Application to another local authority for housing • Section 20 Housing (Miscellaneous Provisions) Act 2009 • Social Housing Assessment Regulations 2011

  20. Social Housing Case-law • Mulhare & Anor v Cork County Council [2017] IEHC 288 • Applicant suffered from profound mental and physical disabilities (cerebral palsy) • Alleged that Council failed to take account of or give sufficient weight to Applicant’s condition • Alleged breach Article 8 ECHR • Reliefs refused – impermissible breach of separation of powers

  21. Social Housing Case-law • Mulhare (apum) v Cork County Council [2018] IECA 206 • Appeal dismissed • Held that the management of local authority housing stock is a matter for the housing authorities concerned and not for the courts. • Unless a clear error in the decision-making process is established the courts may not intervene and quash a decision

  22. Social Housing Case-law • C v Galway County Council [2017] IEHC 784 • Council had refused to continue emergency housing and made a decision to defer housing application • Held that court had no discretion to direct the respondent in the matters relating to providing housing facility to the applicants as the respondent was the best authority to decide on the utilisation of its resources. • No breach of Applicant’s Constitutional / ECHR rights

  23. Social Housing Case-law • Middleton v Carlow County Council [2017] IEHC 528 • Alleged that Council was under a duty to provide emergency accommodation on the basis that applicants were homeless: see s.2 Housing Act 1988 • Mulhare decision followed • Held that the Council had discretion in deciding to provide housing facilities to the needy people and had not conflated the statutory provisions

  24. Social Housing Case-law • Fagan v Dublin City Council [2018] IEHC 642 • Council identified Mr Fagan’s household to comprise a single person and determined his housing need was for a 1-bedroom unit (s.20(1) of 2009 Act) • Concerned test of ‘reasonable requirement to live together’ • No curial deference in statutory interpretation • Application was refused

  25. Homeless Accommodation • Moore v Dublin City Council [2017] IEHC 264 • Council placed applicant on a housing list as a single person, notwithstanding that he could have overnight access to his children if he had suitable accommodation. • Refusal of application under choice-based letting scheme • Amendment of pleadings • Application refused

  26. Homeless Accommodation • Tee v Wicklow County Council [2017] IEHC 194 • Council refused to provide emergency homeless accommodation to applicants • Alleged breach of Housing Act 1988 / ECHR • Noted that the Council dedicates particular officers to dealing with this issue on a daily basis who clearly possess significant expertise in this area to which the court should extend considerable deference.

  27. Homeless Accommodation • Nothing in s.2 of the Housing Act 1988 requires the Council to ignore the fact that an applicant for homeless accommodation has a home outside the State. • Concluded that there was nothing to suggest that the Council's decision that Ms. Tee was not unable to provide accommodation from her own resources was unlawful • Council constrained in applying the Housing Act 1988 – not a matter to vindicate rights under the ECHR – matter for the State • Application was refused

  28. Homeless Accommodation • Tee v Wicklow County Council [2018] IESCDET 44 • While High Court judgment included matters of general public importance and the factual situation of the applicants supported an expeditious appeal, on the particular facts of the application there was a significant risk that the appeal would be determined by reference to fact specific issues • Remove the necessity, and perhaps capacity, for the Court to consider the issues which may be considered to be of general public importance. 

  29. Alleged Defects in Housing • Housing Act 1966 • Obligation to eliminate overcrowding and substandard accommodation • Siney v Corporation of Dublin [1980] I.R. 400 • Court held that the Council owed a duty to its tenant to take reasonable care to ensure that the flat was fit for human habitation at the date of the letting. • Burke v. Dublin Corporation [1991] 1 I.R. 341: applies throughout letting duration

  30. Alleged Defects in Housing • Humphrey v Dublin City Council [2018] IEHC 193 • Plaintiff alleged that premises in Rialto were unfit for human habitation (dampness and mould growth on ceiling) • Alleged inadequate ventilation and poor insulation • Plaintiff was entitled to damages in sum of €25,000 on basis of breach of implied covenant that premises be fit for human habitation • Set-off and successful counter-claim

  31. Traveller Accommodation Case-law • Ward v. Dublin South County Council [1996] 3 I.R. 195 • Not the function of Court to direct a local authority as to how it should deploy its resources or as to the manner in which it should prioritise the performance of its various statutory functions • Matters of policy which are outside the ambit of judicial review • Provision of accommodation in the form of halting sites for members of the travelling community to whom a housing authority owes a duty - not a function of Court to adjudicate on the merits between the differing points of view

  32. Traveller Accommodation Case-law • Section 16 Housing (Traveller Accommodation) Act 1998 • Gavin v Dublin City Council [2008] IEHC 187 • Duty to provide applicants with group housing • Council’s Traveller Accommodation Programme • Programme did not include a specific plan that the Gavin families alone would be provided with accommodation at St. Dominick’s Park

  33. Traveller Accommodation Case-law • O’Donnell v South Dublin County Council [2015] IESC 28 • Definition of dwelling in s.56 of Housing Act 1966 • Held that as both Mr and Mrs O’Donnell were repeatedly offered housing, it was not possible to conclude that the County Council failed in its statutory duty to them • However, one of the applicants was in ‘exceptional position’ as she had cerebral palsy • Held that this was sufficient to impose a special duty on the Council

  34. Contact Details david.browne@lawlibrary.ie

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