Judgment Title: Doherty & Anor -v- Sth Dublin County Council & Ors
Composition of Court: Charleton J.
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 4
THE HIGH COURT
[2006 No. 131 JR]in the matter of the european convention on human rights act, 2003, section 3
Paddy Doherty and Bridget Doherty
South Dublin County Council,
the Minister for the Environment, Heritage and Local Government,
Ireland and the Attorney General
the Equality Authoruty
JUDGMENT of Mr. Justice Charleton delivered on the 22nd day of January 2007
1. The applicants have been married to each other for fifty three years. They have fourteen surviving children and over one hundred grandchildren. They are members of the Irish Traveller Community. Most of their lives have been spent as nomads. Mrs. Doherty is seventy years old while Mr. Doherty is seventy five. They have always lived in a caravan. The pattern of where, and how, they have lived is a reflection of the changing legal attitudes towards their community. For decades they moved from place to place, for ten years they had lived in a place called Hillside in Galway, along with other traveller families, though without facilities. They had also lived near Ennis on a site which had basic services. As a result of trouble the site was closed down and they then lived on the side of the road for around four years. When they moved to Dublin, about ten years ago, it was the first time that they had access to any accommodation facilities or services in their lives. After an error, they were offered a place at Lynch’s Lane halting site on a temporary basis pending the provision of permanent halting site accommodation. This has continued for some seven or eight years.
2. Lynch’s Lane was opened by South Dublin County Council in the mid-1990s in order to provide serviced bays for the caravans of Travellers who traditionally pursued a nomadic way of life and to accommodate Travellers who are awaiting the provision of permanent accommodation by the Council. There are twenty four caravan bays accommodating twenty two families. The transient nature of the site means that not every bay has a standard electricity supply. To provide this, according to the Council, would mean that what was supposed to be transient or temporary becomes permanent. Their long-term plan, due to be completed in mid 2008, involves the redevelopment of Lynch’s Lane to the most modern standard for the caravan accommodation of members of the Irish Traveller Community. Meanwhile, the facilities on Lynch’s Lane are basic. The applicants now live in a mobile home that was purchased three or four years ago with the assistance of a loan from the Council. It has not been repaid. Its electricity supply is basic, it has no internal plumbing, so therefore toilet and shower facilities are in a central block; with pots in the caravan providing temporary relief. The applicants live and sleep in the sitting room area of the caravan in order to keep warm. Only one electrical appliance can be used at a time. The applicants are in poor health. Mrs. Doherty uses an electrically powered nebuliser for up to sixteen hours a day. The attempt to heat the caravan has caused condensation in cold weather and the resulting dampness seems to be contributing to them both picking up ailments including, in Mrs. Doherty’s case, pneumonia. She needs to use the toilet frequently and, in consequence of her increasing immobility, the use of a pot at night is the best practical facility available to her. Because of concerns in relation to her health, and the poor standard of their accommodation, an occupational therapist’s report was prepared in November, 2004. Whether this was brought to the attention of the Council or not at the time, it appears that it was never placed on their housing file, a fact which became apparent on 5th October, 2005, when the applicants’ solicitor made a request to seek the release of the housing file.
3. When, on 27th April, 2005, Mrs. Doherty was discharged from the Adelaide and Meath Hospital, Dublin; Irene Dunne, the Community General Nurse, wrote to the Travellers Unit of South Dublin County Council indicating that Mrs. Doherty had a serious chest condition which in its final stages had to be treated with home oxygen. Her letter indicated that the basic needs of Mrs. Doherty were for an indoor toilet, central heating in her caravan, and hot running water. The letter continued:-
4. These proceedings were commenced in February, 2006. The first substantive offer to the applicants was made about six weeks later. The material part of the letter reads as follows:-
In the circumstances, the Council is of the opinion that the provision of another, albeit newer, caravan with internal plumbing would not adequately or safely address the needs of the applicants or safeguard them against cold, draughts and dampness. Accordingly, the Council is unable to provide your Clients with caravan accommodation of the type sought by them. As your Clients can no longer remain in occupation of the caravan situate in Bay 16, they may now be regarded as homeless persons for the purpose of the Housing Acts. While the Council is in a position to arrange them temporary accommodation of the type offered to other homeless applicants, that is, accommodation in a ‘Bed and Breakfast’ establishment, it is accepted that such accommodation would not be appropriate having regard to your Client’s ill health and advancing years. The Council accepts that your Clients have indicated that standard housing accommodation is not generally acceptable or suitable to them as members of the Traveller Community and notes that your Clients have not applied for such accommodation. Your Clients are included in the assessment carried out by the Council under the Traveller Accommodation Programme 2005-2008 and while it was intended to meet their accommodation needs in the new residential caravan park comprising ten group houses and ten residential caravan sites planned for Lynch’s Lane, the position is that these accommodation works are not expected to commence until the third quarter of 2006 and will not be completed until the summer of 2008. As the Council is unable to provide your Clients with suitable temporary accommodation of the type that they would prefer and does not possess any other suitable temporary alternatives at the present time, I am instructed to inform you that by reason of your Clients’ homelessness and medical priority, the Council is in a position to allocate to your Clients standard housing accommodation in a two bed roomed ground floor apartment at either [addresses stated]. These apartments can be viewed by prior appointment. …”
Reasons for Refusal
6. Neither of these offers was taken up. It is a consistent feature of the correspondence between the applicants and the Council that they have always opted for caravan type accommodation with a group housing scheme, among other Travellers, as a second option. As early as 18th December 1998, the Clondalkin Travellers Development Group, on their behalf, made it clear that the residence in Lynch’s Lane was temporary and was one which they felt would impact negatively on their health. It was an offer which they accepted “because of the electricity and the safety of having neighbours”. That letter seeks to impress on the Council “the extreme reasons as to why they are willing to move into Lynch’s Lane for Christmas” and asks for priority in the provision of permanent accommodation.
7. Paddy Doherty, in his grounding affidavit in these proceedings emphasises his aversion to a permanent form of housing. He says:-
9. These proceedings seek a declaration that the failure of the respondents to ensure that the applicants are provided with a centrally heated, insulated and internally plumbed caravan is in breach of the respondents’ duties under the Housing Acts 1966-2004, as interpreted in the light of s. 2 of the European Convention on Human Rights Act, 2003; is in breach of s. 3 of European Convention on Human Rights Act, 2003; is in breach of the Equal Status Acts 2000-2004; and is in breach of Council Directive 2000/43/EC (The Race Directive). Other relief is sought including injunctive relief requiring the Council to provide the applicants with a centrally heated, insulated, and plumbed caravan, an order of mandamus in that regard and ancillary reliefs. The opposition to this claim has been in the form of contrary affidavits, legal argument and an objection that the reliefs sought are not available in judicial review proceedings. If the proceedings are capable of being compressed into a simple claim and answer, it is that the applicants feel that they are being treated unequally by being offered bricks and mortar accommodation and that they have an absolute statutory right to opt for the traveller way of life, involving caravan accommodation, under the relevant legislation. Insofar as they have made this option, which undoubtedly they have, they say that the treatment afforded to them by the Council is unequal by reason of the fact that members of the settled community who, by reason of their homelessness, are required to be housed by local authorities, receive a roof over their heads, in the form of bricks and mortar. However, members of the Irish Traveller Community who exercise the option special to them in the relevant legislation receive only a piece of tarmac on which to park their caravan, together with ancillary services of a variable kind. The applicants assert that the Council is discriminating against them as members of the Traveller Community by insisting on moving them into a house and, in effect, to adopting a way of life, or circumstance of living, which is alien to them. In effect, the applicants assert that once they have made the choice as Travellers – for non bricks and mortar accommodation – that choice must be respected in all circumstances by the Council and they should then receive a caravan roof over their heads in the same way as the settled community receive a bricks and mortar roof over their heads. The answer of the Council to this assertion is that their offers to the applicants are reasonable and accord with what they are obliged to do by statute.
10. It is not impressive that accommodation offered to the applicants on a temporary basis has continued to be their place of residence for in excess of six years. Nor is it helpful that two substantive offers were made to the applicants only on the commencement of these proceedings. It is important to record, however, that insofar as accusations of unequal treatment and mentions of the Race Directive may give rise to the suspicion that the worse forms of motivation for human conduct are at play here, the Court finds no evidence on the papers before it that the respondents have acted out of prejudice against Travellers. Much of the delay can be explained on the basis of administration and its burdens coupled with the fact that the applicants, having moved into Lynch’s Lane, began to reassert entitlements in writing only after a health crisis. South Dublin County Council does, in fact, have a traveller accommodation programme which was adopted by the County Council at its meeting held on 9th May, 2005. At that stage they were either planning or had completed 215 Units for the accommodation of Travellers in a variety of schemes including the group housing transient halting sites and temporary halting site accommodation. In addition, the plan notes that approximately 120 families are in standard houses in mainstream Council accommodation. Those schemes that are in the course of development show that the Council is moving from accommodating Travellers in a number of very basic tarmacadam sites, with basic services, to permanent facilities where a caravan can be parked beside a day house, assigned to one family, where all the functions of living can be carried out except that bedrooms are reserved to the caravan or mobile home parked nearby. No doubt the Council could, or perhaps should, do more. That however, is not an issue for the court. What is at issue here is as to whether there has been a breach by them of their legal duties towards the applicants or whether there have been failures by the other State bodies contributing to same.
The Equality Acts
11. Both counsel for the Attorney General and for South Dublin County Council have argued that there is no unequal treatment in the provision of accommodation offered pursuant to statute to the applicants. Fundamentally, they argue that the Court, in adjudicating on this judicial review, is not entitled to have any regard to the provisions of the Equal Status Act, 2000 and the Equality Act, 2004. The rights and obligations therein created, it is argued, belong only within the scheme created by those Acts and administered within the mechanisms set up by them. Prior to the Equal Status Act, 2000, a person selling a house would have been entitled to advertise it in the newspapers as being for sale only to a purchaser of a particular Christian denomination or an individual over 60 years of age. The Act of 2000 announces itself, in its long title, as a measure to promote equality and to prohibit discrimination whereby members of the public will have general access to goods and services. Most importantly, the Act has mechanisms for investigating and remedying discrimination through the Equality Authority, which it sets up. The applicants are clearly members of the “Traveller community”, which the Act, by s. 2, defines as “the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”. Discrimination occurs, within the meaning of the Act, where one person is treated less favourably than another person. There can be good reasons for discrimination. For instance, one does not pick an elderly man as part of an international sprinting team. The discrimination that is prohibited is therefore described in the Act. It includes gender, marital status, family status, sexual orientation, religious belief, age, disability, ethnic origins, membership of the traveller community or victimisation because a complaint has been made by that person under the Acts; s. 3 of the Equal Status Act, 2000 as amended by s. 48 of the Equality Act, 2004. This kind of discrimination is prohibited within a range of human activities including the sale and renting of accommodation, the provision of goods and services, and within clubs and educational establishments. Part 3 of the Act of 2000, as amended, deals with enforcement. Section 21 provides that a person who claims that discrimination has been directed against them “may…seek redress by referring the case to the Director”: that is the person in charge of the Equality Authority set up by the Act. The case is then, subject to time limits and other procedural matters, investigated and may be subject to mediation and ultimately decision; s. 25 of the Equal Status Act, 2000 as amended by s. 59 of the Equality Act, 2004. Redress may be ordered under s. 27 of the Equal Status Act, 2000 as amended by s. 61 of the Equality Act, 2004. There may be compensation or a mandatory order. Thereupon the matter may be appealed to the Circuit Court; s. 28 of the Equal Status Act, 2000. From there an appeal may be taken on a point of law to the High Court. Under the scheme of the Acts, this Court could have been involved earlier, pursuant to s. 23 of the Equal Status Act, 2000, as amended by the Equality Act, 2004. This creates a legal norm whereby an injunction may be granted by the High Court, on the application of the Director, in respect of discrimination, which is called prohibited conduct, which is likely to re-occur. The Equality Act, 2004 recites in its long title that it is passed into law, in part, for the purpose of implementing certain European Union Directives. So, for instance, s. 64 inserts a new s. 38A in the Equal Status Act, 2000 providing for a reversal of the burden of proof and this accords with Article 8 of Council Directive 2000/43/EC of 29th June, 2000.
12. In my judgment, the Equal Status Acts, 2000 - 2004 do not create new legal norms which are justiciable outside the framework of compliance established by those Acts. Prior to the Local Government (Planning and Development) Act, 1963 one could lawfully turn one’s house from being a family home into a block of apartments. Subject to tort laws relating to nuisance, one could establish a factory or workshop in one’s back garden. Many activities which involved the development of land would also have required one to obtain a licence, for instance to run a slaughter house, but these were incidental to one’s general right to develop one’s property as one wished. Prior to the Unfair Dismissals Act, 1977, the only right that an employee would have in respect of his or her employer was for a period of notice to be given of dismissal, as specified in the contract of employment, or such as were implied by law where the contract was silent. There was no recognition that an employee had a right to work or had any quasi-proprietary interest in their job; see Redmond, Dismissal Law in Ireland (Butterworths, Dublin, 1999) 3 – 27. The Unfair Dismissals Act, 1977 established such rights and, like the Equal Status Acts, 2000 - 2004, set them up within a framework providing for a specific tribunal enforcing new legal norms and with particular rights of appeal to specified courts in particular circumstances. The difference between the Unfair Dismissal legislation and the Equal Status Acts, 2000 - 2004 is that under the Unfair Dismissal Act, 1977, a person must opt to choose between a claim for wrongful dismissal pursuant to his employment contract, or for unfair dismissal under the Act. Wrongful dismissal would involve litigation in the ordinary courts, which historically have dealt with all the questions related to contract, whereas by claiming unfair dismissal one would come under the special tribunal established by that Act.
13. Article 34.3.1 of the Constitution provides that “The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” It is on this basis that the applicant claims that the rights available to him under the Equal Status Acts, 2000 - 2004 may be pleaded and determined in judicial review. In Tormey v. Ireland  I.R. 289, Henchy J. at 295 analysed this provision of the Constitution in the light of the remainder of Article 34 and in the light of the Constitution as a whole. He said:-
15. The general test developed in the law of tort was stated by Lord Diplock in Lonrho Limited v. Shell Petroleum Co. Limited and Others  A.C. 173,  2 All E.R. 456 where he indicated that the existence of a statutory provision could give rise to a right in damages:-
1. Where the provision is designed for the protection or benefit of a particular class of persons and a member of that class is injured as a result of the breach; or
2. Where the provision creates a public right, but the plaintiff has suffered particular injury over and above the type of harm suffered by the public generally.
16. The ultimate test, however, is a matter of statutory interpretation. The issue is whether the legislature intended that private law rights of action should be conferred upon individuals where breaches of statutory duty are shown to have occurred. Of itself, the fact that a particular provision was intended to protect certain individuals, such as member of the Irish Traveller community, is not sufficient to confer a right of action before a court. Legislation creates obligations. All of the case law concerned with private law rights centres around categories of legislation where the right of enforcement is not specifically stated to be in the context of a civil claim. Often, the breach is triable before a criminal court. In addition, rights of action in private law may be created where the breach of the protection has caused an injury to the persons in respect of whom it was designed to provide protection and where the legislation creates a public right where the plaintiff has suffered a particular injury as a result of the breach. The fundamental rule of statutory interpretation remains, however, that stated by Tenterden C.J. in Doe d, Bishop of Rochester v. Bridges [1824-34] All E.R. Rep. 167 at p. 170:-
17. I am fortified in this conclusion by a statement made by Fennelly J. in the course of his judgment in Maha Lingam v. Health Services Executive, (Unreported, Supreme Court, 4th October, 2005) where, in the context of a claim which, in part, relied on the Protection of Employee’s Fixed Term Work Act, 2003 he stated:-
The Right to be Housed
19. The Housing Act, 1966 consolidated existing legislation as to the provision of housing. It also cast a duty on local authorities to survey the need for housing within their functional area and to make provision, based on the scheme of priorities, whereby people who are otherwise unable to afford housing might be offered accommodation at reasonable rent. Section 60 provided that it is the duty of a housing authority to make a scheme determining the priorities to be accorded to categories of persons who are in need of housing. This scheme was a public document which could be inspected; s. 60(9). The primary objectives of this section were replaced by s. 9 of the Housing Act, 1988, which recasts s. 60, which it repealed. Section 9 makes it the duty of a housing authority to assess the needs of the homeless, of Travellers, of those in unsuitable accommodation, of young people without family support, of the sick and the elderly, and those without adequate means. This includes those who may later enter the functional area of the authority. Under s. 10 further powers to offer accommodation, such as Bed & Breakfast accommodation, are conferred on the housing authority. Part IV of the Act of 1966 is concerned with the elimination of slum and tenement dwellings and, in that regard, empowers local authorities to serve orders for repair or demolition and to bring prosecutions in respect of related offences. Section 56 of the Act of 1966 provides:-
(2) A housing authority may, in connection with dwellings provided, to be provided or which in the opinion of the authority will in the future require to be provided under this Act, provide and, if they think fit, maintain in good order and repair roads, shops, playgrounds, places of recreation, parks, allotments, open spaces, sites for places of worship, factories, schools, offices and other buildings or land and such other works or services, as will, in the opinion of the authority, serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons.”
s. 25, the authority may make a loan for the acquisition or repair of a caravan, or to purchase a site. Under s. 15 of the Housing Act, 1988, as inserted by s. 30 of the Housing (Traveller Accommodation) Act, 1998, the Minister may pay to a housing authority a grant or subsidy in respect of:-
(b) The improvement or reconstruction of dwellings provided by the authority;
(c) The provision of caravans or the provision, improvement or management by the authority of sites for caravans referred to in s. 13 (as amended by the Housing (Traveller Accommodation) Act, 1998) for persons to whom that section applies;
(d) The acquisition of land for the provision of dwellings or sites referred to in this section;
(e) The carrying out of ancillary works … ; and
(f) The provision of assistance under s. 5 to a body approved of by the Minister for the purposes of that section.”
23. Under the scheme of the Acts there was a duty cast upon housing authorities to work on the elimination of homelessness within their functional areas according to a scheme of priorities set out by the Oireachtas. Homelessness is, of its nature, a measure requiring an emergency response. I cannot accept that it was the intention of the Oireachtas to establish a rigid division between members of the Irish Traveller Community and persons who are settled by providing that the problem of homelessness would be dealt with by the authority always being required to provide only caravan or site accommodation to Travellers, at their option, but bricks and mortar accommodation to settled persons. It seems to me that the resolution of this problem hinges around the issue as to how homelessness is defined. Section 2 of the Housing Act, 1988, provides that definition:-
(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a),
25. Counsel for the Attorney General has argued that homelessness does not depend alone on the accommodation which a person is occupying, but depends as well on what accommodation is available to him or her: once, within the meaning of s. 2 of the Housing Act, 1988, there is accommodation available which a homeless person can reasonably occupy, the state of homelessness ends. I agree with this. It is impossible to ignore that to be homeless, under the Acts, one is required to have not just no accommodation but none that one could reasonably occupy. Living, as they are, in a caravan which is damp and without the provision of an indoor toilet which they need and which is unsuited to their state of health, the applicants are homeless. Once, however, a reasonable offer has been made by the housing authority which the applicants choose not to take up, their state of homelessness has ended.
26. The further assertion that there is inequality of treatment between members of the Irish Traveller Community and those who are settled is based on the premise that a settled person, applying for a house and being successful, will receive a roof over his or her head, whereas a traveller will not. In accordance with s. 15 of the Housing Act, 1988, as amended by s. 30 of the Housing (Traveller Accommodation) Act, 1998, there is, in fact, a scheme of loans and grants for the purchase of caravans pursuant to circular letter TAU 1A/2000 of the 18th October, 2000, from the Department of the Environment and Local Government. This requires that a caravan must be purchased from a reputable supplier who is registered for VAT, that it is value for money and that it will be located in a bay or other site provided by the Local Authority. According to documents handed in during the course of the hearing, a scheme is available whereby loans may be made under s. 25 of the Housing (Traveller Accommodation) Act, 1998, which empowers local authorities to give loans for the provision of private Travellers specific accommodation; SI 37 of 2000 provides that a loan of up to €6,350, repayable over one to five years, together with a once off grant of €640 is available and a special, though small, grant is available only to Travellers for the purchase of a new or second hand house in the amount of €3,810. Circular letter TAU 4/2002 and circular letter TAU 1/2000 explain that the purpose of the scheme is “to encourage initiatives to address the needs of traveller families who live in substandard caravans or in over crowded conditions”.
27. There is equality of treatment between members of the Irish Traveller Community and the settled community vis à vis the provision of housing in bricks and mortar. Anyone, without distinction, will have an entitlement to same upon being homeless. Members of the Irish Traveller Community have a special and unique additional provision made for them in the form of caravan sites, site works and loans for the purchase of caravans. The fact that this additional option is available only to Travellers, from whatever country, does not mean, in my judgment, that it can be exercised in all and every circumstance so as to apparently continue the state of homelessness that gives rise, in the case of all citizens, to the requirement of the local authority to seek to offer accommodation to homeless persons that they might reasonably be expected to reside in.
28. This is the first case in which a claim has been made by a member of the Irish Traveller Community to be provided with more than a site. In all the previous cases to which I have been referred, the argument has been as to whether there is a statutory duty on a housing authority to make provision for sites for members of the Irish Traveller Community and as to whether in particular circumstances, that duty has been fulfilled. In McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July 1980), it was held that the offer of provision of chalet accommodation to the plaintiff, was in the circumstances, a reasonable discharge by the defendant of its duty to house the plaintiff. In O’Reilly and Others v. Limerick County Council and The Attorney General and Human Rights Commissioner, (Unreported, High Court, 29th March, 2006), it was held by MacMenamin J. that a choice to resume accommodation in unacceptable conditions may not disentitle an applicant to relief and that there is a duty on a county council to fully advise those members of the Irish Traveller Community who were uneducated as to their full rights with regard to housing.
29. Since University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February, 1991), a line of authorities have followed the judgment of Barron J. in that case that the scheme of the Housing Acts contemplates not only that an assessment of housing needs should be made in relation both to the Irish Traveller Community and to settled persons, but that it should be acted upon. In two cases, orders were made by the High Court that serviced halting sites should be provided by housing authority respondents within a period of 12 months. In County Meath V.E.C. v. Joyce and Others  2 ILRM 210, Flood J. ordered that Meath County Council should bring their assessment of housing and serviced camp site needs up to date and to provide sites within 12 months of the date of the perfection of the order he made in that regard. In John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10 June 1994), Costello J. made an order that the County Manager should carry out works at specified locations providing for hard core sites, an electricity supply and drainage to certain members of the Irish Traveller Community. All of these judgments followed the decision of Barron J. in University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February 1991). Having first decided that s. 13 of the Housing Act, 1988 imposed a duty to provide caravan sites, as opposed to merely empowering a housing authority to do so, Barron J. went on:-
31. The applicants argue that their status as members of the Irish Traveller Community means that special arrangements are required to be made for them, even apart from the statutory provisions already referred to. It has been argued that the scheme under the Housing Acts operates on the basis of an untrammelled choice to be made by a member of the Irish Traveller Community between accommodation in bricks and mortar and in a caravan. It is urged that this interpretation be placed upon the Acts because of s. 2 of the European Convention on Human Rights Act, 2003. This provides:-
(2) This section applies to any statutory provisions or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
34. The European Convention on Human Rights was agreed between the signatory governments in Rome in November, 1950. Its text sets out the fundamental rights which the citizens of Europe are entitled. The Articles pleaded here were Articles 8 and 14. Article 14 prohibits discrimination and provides:-
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
37. In Anufrijeva and Anor v. Southwark London Borough Council  1 QB 1124 the Court of Appeal of England and Wales dealt with three different cases that concerned the right to a family and private life under Article 8 of the Convention. Lord Woolf C.J. noted at para. 25 in relation to the problem of deciding when a positive obligation of intervention was cast on State authorities, apart from a duty not to interfere:-
41. It is argued, in addition, that the housing legislation should be interpreted in favour of the applicants. The limits to which the interpretation requirement set out in the corresponding provision of the United Kingdom Human Rights Act, 1998 may be taken are to be found in the decision of the House of Lords in Ghaidan v. Godin-Mendoza  3 WLR 113 where it was held that a definition of spouse as extending to a person living with a tenant “as his or her husband or wife” could encompass a surviving homosexual partner who is not, under the decision, to be put in any less secure a position than the survivor of a heterosexual relationship in respect of statutory tenancy rights.
42. It has been urged on the Court that what is reasonable in terms of accepting or refusing accommodation, within the definition of homelessness in s. 2 of the Housing Act, 1988, must take into account the particular circumstances of the applicants living, as they have, all their life either as nomads on the side of the road or, for the about the last ten years in various halting sites. Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation, they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of re-development. In the meanwhile it is not unreasonable that the available accommodation is in bricks and mortar and nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: this is not in accordance with the scheme of priorities set down by the Council under the Housing Acts and its provision is outside the relevant regulations made under s. 15 of the Housing Act, 1988, as amended.
43. A duty to take into account the sensitivities of members of the Roma communities, whether Gypsies from the neighbouring kingdom, members of the Sinti from Central Europe, or members of our own Irish Traveller Community, can arise when interpreting administrative measures. These obligations are not, however, unlimited. In Chapman v. United Kingdom (2001) 33 EHRR 18 the European Court of Human rights dismissed an argument that a nomadic lifestyle gives rise to an automatic duty on States to intervene in favour of preserving this way of life, stating, at paras. 96 to 99, as follows:-
It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English Courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. 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.”
46. I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them.
47. Some procedural matters were pleaded in order to bar certain sections of the applicants claim. Since the substantive decision has gone against them, I can deal with these matters briefly.
48. It was claimed that as there was a conflict of evidence on the affidavits as between the applicants and South Dublin County Council, that the court should not proceed to judgment but should refer the matter for plenary hearing. I do not accept this. Insofar as any conflict existed, it was on the basis that the applicants claimed that they wished to continue to live in a caravan, and an assertion by South Dublin County Council that their age and medical condition made it entirely unsuitable that they should be accommodated in a caravan or mobile home which, of its nature, has insulation difficulty and, consequently, condensation problems. The duty cast on the High Court in judicial review is to resolve such facts as can be resolved on affidavit and to determine, on the basis of those facts, as to whether any of the reliefs sought should be granted.
49. Secondly, it was pleaded that the applicants should involve themselves, in some unspecified way, in an appeal mechanism and that, in consequence, the decision of the Supreme Court in the State (Abenglen Properties Limited) v. Corporation of Dublin  I.R. 381, gave me a discretion to refuse that application. I do not accept that. Persons given statutory rights to a hearing may be able to call in aid the High Court’s jurisdiction under judicial review. The fact that an appeal might be available as an alternative can, depending on the circumstances, bar the availability of a remedy but it does not automatically exclude it.
50. Thirdly, it has been argued that a mandatory order should not issue in this case. In Minister for Labour v. Grace  2 I.R. 53 at 55, O’Hanlon J. held:-
51. Lastly, I note that in T.D. v. Minister for Education  4 IR 259 the limits on the court in terms of interference with executive decision-making was set out. Hardiman J. stated:-