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THE HIGH COURT

DUBLIN

[2004] IEHC 184

Record No. 2002/103JR

HELEN McDONAGH & ORS.

Applicants

-V-

THE COUNTY COUNCIL OF THE COUNTY

OF CLARE AND ENNIS TOWN COUNCIL

Respondents

APPROVED JUDGMENT DELIVERED BY MR. JUSTICE SMYTH

ON THURSDAY 20TH MAY 2004

I hereby certify the

following to be a true

and accurate transcript

of my shorthand notes of

the evidence in the

action.

______________________

APPEARANCES

For THE APPLICANT: MS. M. O'TOOLE SC

Instructed by:

For THE RESPONDENT: MR. J. CONNOLLY SC

Instructed by:

JUDGMENT OF MR. JUSTICE T.C SMYTH DELIVERED THE 20^TH DAY OF MAY 2004

MR. JUSTICE SMYTH:

On 25th February 2002, by Order of McKechnie J, the Applicants obtained leave to apply for judicial review for the reliefs following:-

1. A Declaration that the first and second-named Respondents have a statutory obligation under the Housing Acts, 1966-1998, to provide suitable and adequate conventional housing for the Applicants, being persons who are homeless within the terms and meaning of the Housing Acts, 1966-1998 and qualified for such accommodation.

2. A Declaration that the first and second-named Respondents have failed by virtue of the breach of statutory duty in omitting to provide suitable and adequate accommodation to vindicate the Constitutional rights of the Applicants and have infringed the rights of the Applicants to bodily integrity and their right not to have their health endangered as warranted by Article 40.3.1 - 2 and have infringed the family rights of the Applicants as warranted by Article 41.

3. A Declaration that the Applicants' housing needs have been assessed by the first and second-named Respondents within the terms and meaning of the Housing Acts, 1966-1998 and that the Applicants are approved and included in an allocation by the first and second-named Respondents for suitable and adequate conventional housing accommodation.

4. A Declaration that the provision of temporary halting site accommodation with the intention that the tenants will reside there for a period of years is an unlawful, insufficient and inadequate performance of the duty of the Respondent to provide the Applicants with suitable living accommodation.

5. An Order of mandamus requiring the first and second-named Respondents to take such steps as are necessary to provide the Applicants with suitable and adequate accommodation in conventional housing, including suitable and adequate temporary or emergency accommodation in conventional housing.

6. Without prejudice to the foregoing, an Order of mandamus obliging the first and second-named Respondents to disclose and provide details to the Applicants concerning their place in the order of priority on the first and second-named Respondents' housing lists pursuant to the scheme of priorities under the Housing Act, 1988.

The grounds upon which reliefs were given to the Applicants were that:-

1 (a) The Respondents are housing authorities exercising concurrent statutory duty pursuant to the Housing Acts, 1966-1998. The Applicants were on the housing list in respect of the provision of conventional housing of both Respondents. The Respondents had a duty to provide suitable and adequate accommodation for the Applicants in conventional housing. The Respondents had a duty to make particular provision and have special regard in any scheme of priorities for the letting of dwellings for persons such as the Applicants who were qualified for the provision of housing and in need of accommodation arising from an emergency.

(b) The Applicants were homeless within the terms and meaning of Section 2 of the Housing Act, 1988, members of the Travelling Community and persons whom the Respondent housing authorities had reason to believe required and were in need of conventional housing and unable to provide same from their own resources. The Applicants' living circumstances were unfit for human habitation and were materially unsuitable and overcrowded and they were in urgent need of suitable and adequate accommodation in conventional housing for medical reasons.

(c) The Applicants' immediate need for suitable and adequate accommodation arises from an emergency and in the scheme of priorities in respect of the letting of dwellings (as provided for in Section 11(2) (c)) and in respect of the making of housing assessments pursuant to Section 9(2)(a), (b), (c), (d), (e), (g) and (i) of the Housing Act, 1988, the first and second named Respondents have a duty to make particular provision for persons whose immediate and urgent need for accommodation arose from such emergency and to have regard for the particular circumstances of the Applicants. Section 10 of the Housing Act, 1988 contained express provisions permitting the provision of a financial assistance and assistance with accommodation for homeless persons. The Applicant family's sole income was derived from social welfare benefit payments and they were unable to provide for the accommodation needs of their families from their own resources. The Respondents had a duty to provide by way of interim measures, suitable and adequate accommodation in conventional housing for the Applicants.

2. Some of the children of Thomas and Mary McDonagh are suffering from ill health and the failure by the first and second named Respondents to provide them with suitable and adequate conventional housing accommodation infringed the constitutional rights of those Applicants to bodily integrity and their right not to have their health endangered.

3. (a) The first named Respondent has acted ultra vires Housing Acts, 1966-1998 and in purporting to invoke the provisions of Section 10 of the Housing (Miscellaneous Provisions) Act. The Applicants are owed a duty in respect of the provision of suitable and adequate accommodation in conventional housing which duty cannot be adequately or sufficiently met by the use or mechanism of a Notice under Section 10. The purported Notices were issued in circumstances where the first named Respondent is in continuing breach of its statutory duty to the Applicants.

(b) The purported provision of accommodation for the Applicants at a temporary halting site at Glenina, Gort Road, Ennis is neither appropriate, suitable or adequate for the Applicants who have extensive health and medical problems within their families and who have expressly and clearly stated their wish to be accommodated in conventional non traveller specific accommodation and who have been accepted as qualified for such accommodation by the respective Housing Authorities.

4. The Respondents had a duty to operate and implement pursuant to Section 11 of the Housing Act, 1988 any scheme of priorities for the letting of dwellings to persons who are homeless and in particular need of accommodation on medical and safety grounds. This duty included the maintenance and availability of housing stock of conventional housing including the availability of emergency housing stock.

[At the hearing Relief and Ground No. 2 were abandoned and not pursued.]

The Facts:

This application is now being pursued by Mary McDonagh for and on her own behalf and on that of her several children. She is now "estranged" from her husband, Thomas McDonagh. The Court is no longer concerned regarding the substantive issues of the case regarding all other Applicants whose housing needs have been met. A lot of unnecessary historical detail concerning the life and times of Mary McDonagh and her family is contained in numerous and prolix affidavits. Suffice it to say that despite being supplied at various times with no less than five caravans which through disrepair, fire or vandalism became uninhabitable, occupying unlawfully one local authority house for a short while, being provided with conventional housing by a housing authority which was vacated (stated by the Applicants to be due to intimidation; but which, if it existed, was in large measure, in my judgment, grounded in the unruly behaviour, noise and disturbance of the Applicants which called for Garda and ambulance services) which, when it ceased, left the premises requiring significant repairs. Over the years, the Applicants increased the number of their children in the family at times, while at the same time complaining of inadequacy of then existing accommodation and ill-health of then existing children. The family of Mary McDonagh were living at the side of the road in February 2002 at Friar's Walk, Ennis. On 18th February 2002, the Applicants were served with summonses pursuant to Section 107 of the Public Health (Ireland) Act, 1878 as amended by Section 32 of the Local Government (Sanitary Services) Act, 1948 to answer a complaint of having created a public health nuisance arising from the use for human habitation of a temporary caravan at Friar's Walk, Ennis. On 21st February 2002, the Applicants received notices pursuant to Section 10 of the Housing (Miscellaneous) Act, 1992 (as amended) obliging them to leave the unauthorised site at Friar's Walk and to move to a new temporary traveller halting site provided by the Clare County Council at Glenina, Gort Road, Ennis. This is a modern, well serviced site which was and is a vast improvement on the circumstances that prevailed at the side of the road. I reject the submission that the Section 10 notice was cynically used to accommodate the Applicants such as to defer any entitlement they may have had to conventional housing. These proceedings were brought before the Court on 25th February 2002. I find as a fact and a matter of law that in so acting the Respondents did not act ultra vires, the Section 10 Notice was appropriate to the circumstances and as is clear from the affidavits it was not intended that the move to Glenina was a final solution and accordingly it was an adequate and sufficient discharge of the duty of the Respondents to the Applicants.

I am satisfied and find as a fact that over a period of ten years the Applicants had been accommodated in varying types of accommodation at various addresses in or about Ennis, Co. Clare. Various option were explored (traveller accommodation sites, conventional housing, shared ownership scheme). On 27th February 2001, in a housing application form signed by both Mary McDonagh and Thomas McDonagh, it is expressly stated that no member of their household was suffering from any serious illness or physical disability and that their preferred form of housing accommodation was at standard local authority housing and the preferred area was Clarecastle.

I am satisfied that the Respondents were aware of the obligation to prepare and did prepare a Traveller Accommodation Programme (TAP) arising from the provisions of the Housing (Traveler Accommodation) Act, 1998. It was considered appropriate that pending the provision of the accommodation units provided for in the TAP 2000-2004 that the Respondents would pursue the provisions of emergency halting sites in the Ennis and Ennistymon areas of Co. Clare. Resources of the order of €10 million (10 million Euro) have been committed to and substantially been expended on the TAP, some of the buildings and undertakings of the 2000-2004 programme will not be completed until mid 2005 or thereabouts. I am satisfied and find as a fact that the information gained from the assessments for and under the TAP are dynamic and by their very nature ever changing.

When a list was compiled on 31st March 1999 of "travellers requiring accommodation", the Applicants were not on the list, as they were then living in conventional housing at No. 8 Oakwood Drive, Ennis. It is accepted by the Applicant, Mary McDonagh, in paragraph (12) of her affidavit sworn on 17th July 2002 that her family were not without fault in bringing about the circumstances that led to leaving the conventional housing that had been offered and occupied by them. But she put the preponderance of the blame for their vacating the premises on intimidation. While it may be true in a manner of speaking that the Applicants did not leave No. 8 Oakwood Downs of their own free will or are at their present accommodation of their own free will, I am satisfied and find as a fact that their behaviour or conduct in each case caused or contributed to the moves made and such is the consequence in whole or part of their own actions not the result of any act or default of either Respondent. I find the construction put on events in affidavits prepared by lawyers instructed to put forward a case for the Applicants less than wholly convincing. The Respondents, nonetheless, accept that such conduct by Applicants does not in any way disentitle them to their rights as enshrined by statute. While there is an obligation on a housing authority at all times to keep an open mind in their consideration as to whom, at any particular time, can and should be considered as entitled to be housed under the Housing Acts, 1966-1998, they are not obligated to ignore what, if any, form of accommodation may have been available to an applicant in the past under the Acts. As of 31st March 1999, a Notice to Quit dated February 1999 had been served, but this clearly had some frailty because when proceedings issued by the second Respondent in May 1999 for arrears of rent, the matter came before the Ennis District Court in October 1999 and the matter was adjourned to allow a new Notice to Quit to be issued. Accordingly, it was in order for the Respondent to record that the Applicants had not left No. 8 Oakwood Drive on 31st March 1999, because as a matter of fact they were still living there.

In paragraph (17) of the affidavit of Mary McDonagh sworn on 17th July 2002 she avers that it is incorrect for Mr. Moroney, the Housing Officer of the first Respondent, to state that the Applicants had indicated a preference for housing in the Clarecastle area. This, like other averments, conveniently ignores the form signed on February 27th 2001, earlier referred to in this judgment. The documents make clear that the Applicant's preference is to be housed in private housing at public expense which large sections of the settled community supposedly at some economic advantage over the "travelling community" cannot aspire to or afford and, as a second preference, that they be housed in the Ennis area in conventional housing.

I am satisfied and find as a fact that there was no policy being operated by the Respondents or either of them of a form of graduation process imposed or on members of the travelling community who are homeless, deliberately or otherwise, desiring or requiring or in need of conventional housing of moving from road side to halting site to conventional housing. If members of the travelling community are temporarily accommodated in temporary or permanent halting sites prior to being housed in conventional housing, such interim accommodation is accommodation that is not available to the settled community and I venture to think that if a housing authority were to make such interim accommodation available to members of the settled community, more litigation would ensue.

One of the complaints of the Applicants is that they were not informed as to where they were in the scheme of priorities of the housing list. Altogether from being under no legal obligation to furnish such information, I am satisfied and find as a fact that because the decided case law imposes an obligation on a housing authority to consider all persons in need of housing if and when any form of accommodation becomes available and because of the dynamic nature of the demand, it would be inappropriate and unwise to make any such disclosure, which as a matter of probability would lead to more needless litigation based on grounds of legitimate expectation, estoppel or a representation which, no doubt, would be said to be acted upon to detriment. In matters of policy - so long as operating within a statutory legal framework, but subject only to necessary judicial review, the Courts ought not to enter into the function of the housing authority. In my judgment, the type of disclosure envisaged by the Applicants - modified in counsels' submissions, would move the Court in the direction of evaluation of competing needs, rather than judicial review of administrative action.

A challenge made to the scheme of priorities was that matters such as good estate management were not mentioned in the scheme of priorities: accordingly, such could and should not be considered. The obligation that good estate management be observed by the housing authority arises pursuant to the provisions of Section 14 of the Housing (Miscellaneous Provisions) Act, 1997. Accordingly, it is a statutory requirement to be observed whether included in the priorities or not. It is not an ultra vires consideration. The scheme of priorities is indicative of the matters that will be considered by the local housing authority, but it is not exhaustive of all statutory requirements which they are obliged to observe.

A number of miscellaneous matters arose in the course of the lengthy affidavits, which though not central to the issues for determination, require such determination as can be made on evidence on affidavit. I am satisfied and find as a fact that: -

1. Promise of a House

Mary Moriarty did not have any power or authority (of which she was at all material times aware) to promise or guarantee the Applicant a house. Notwithstanding what is stated in the affidavit of Colette Bradley of her understanding of an overheard conversation and what she avers having told Ms. H. Rosen; even if such a promise were made, and I am satisfied none was, it could not inhibit the housing authority from acting in accordance with statute (Dublin Corporation -V McGrath) [1978] ILRM 208.

2. Compromising Litigation

Ms. Moriarty did not seek to induce the Applicants to drop, withdraw or otherwise render harmless the Respondents or either of them from this litigation. It appears that as of 24th January 2003 the Keenan family and the first three Applicants' housing needs may have been met, and other than the issue of costs, the matter was moot - in such circumstances, it is understandable that Mary McDonagh, having persuaded herself that Ms. Moriarty's indication of her views (paragraph 6 of Ms. Moriarty's affidavit sworn on 21st July 2003) was a promise of a house, would wish to contact her solicitor. I dismiss as baseless the suggestion in the correspondence that the Respondents through their personnel sought to breach whatever relationship existed between any of the Applicants and their solicitor or sought in any way to browbeat or trick the Applicants or any of them into a position of disadvantage or to interfere with or influence the proceedings or their outcome.

In my judgment, Ms. Moriarty was quite entitled to convey her views to Mrs. Mary McDonagh as set out in paragraph (7) thus:

"At all times I wished to convey to Mary McDonagh that, in my opinion, the bringing of legal proceedings would neither hinder or advance the allocation of housing to her. As Mary McDonagh had indicated a fear to me that the fact that she had brought such proceedings might be held against her when it came to allocation, I said that personally I did not see the point of the court case if she would ultimately be provided with such accommodation in any event. I meant to convey to Mary McDonagh that the bringing of proceedings would not be held against her. I said I did not see the point of the court case if she could get the accommodation without going through this procedure."

3. Intimidators

The Applicants complained to the second Respondent that they left No. 8 Oakwood Drive (conventional housing) which were given to them in September 1978, due to intimidation, but only revealed the name (S) of the intimidator (S) long after they left the premises (they left the premises in January 2000), thus rendering by that delay any form of injunctive relief (the only real effective remedy if the intimidation were proven, unwarranted and unprovoked) improbable of achievement. Before embarking on a consideration of the legal submissions in this case I think it appropriate to first consider the extent (if at all) to which the Court can intervene in relation to the performance of Housing Act functions. In Ward -v- South Dublin County Council [1996] 3 IR 195 at page 203 Miss Justice Laffoy stated:-

"...this court will intervene and provide relief by way of mandatory injunction where inactivity on the part of a Housing Authority in relation to its obligations under section 13 of 1988 is such as to constitute a breach of that Housing Authority's statutory duty. On the evidence, I am satisfied that the authority is currently taking steps to fulfil its statutory obligations under section 13 to the members of the traveller community to whom it owes such obligations. It is not the function of the 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. These are matters of policy which are outside the ambit of judicial review. Moreover, in relation to the function at issue here, the provision of accommodation in the form of halting sites for members of the travelling community to whom a Housing Authority owes a duty under section 13, while there may be informed opinion as to how the function would be best performed, differ from the approach being adopted by the Housing Authority, it is no function of the Court to adjudicate on the merits between the differing points of view."

The concern in the Ward case related to the allocation of units on a halting site, as opposed to conventional housing (permanent or emergency as in the instant case). It is relevant, however, for present purposes to note that as regards judicial intervention in matters of this nature Laffoy J held at page 205 that:

"It is for the Housing Authority, however to determine priorities in relation to the allocation of halting site units and, as was recognised by Costello J. (as he then was), in O'Brien -v- Wicklow County Council unreported, High Court, Costello J., 10th June 1994) this court has no function in ordering provision of a halting site unit for any particular applicants or in any particular order."

The Law and Legal Submissions

It is common case that the Respondents have a statutory obligation be under the Housing Acts 1966-1998 to have regard to the needs of the Applicants who were and are persons within their functional area who are in need of permanent accommodation and to provide such accommodation for all those persons including the Applicants in a rational and reasonable manner over a period of time by the application of available resources in accordance with a scheme of priorities and the first named Respondent's TAP and /or Housing List.

Ms. M. O'Toole SC for the Applicants submitted that the conditions of severe deprivation in which the Applicants were living in as from January 2002 were of a character that could be said to be one of emergency and that the Applicants were entitled to aspire to and request that they be given living accommodation in conventional permanent accommodation or if such were not available in conventional emergency accommodation and not to be placed in caravan accommodation in a Temporary Emergency Site at Gort Road, Ennis.

In this case the principal grounding affidavit is that of Helen McDonagh, the are first named Applicant in the title of these proceedings, who swore to facts concerning Mary McDonagh and her family. Without wishing to characterise improperly the role of Helen McDonagh I think she could be fairly described as the spokes person, on affidavit at least for all the Applicants. In other judicial review proceedings Record No. 2000/253 JR entitled Con O'Donoghue & Others -v- Clare County Council & Others, Helen McDonagh in paragraph (11) of an affidavit sworn on 25th May 2000 avers (inter alia) as follows:

"I say that no additional circumstances have arisen in recent weeks or months which have worsened the conditions in which the travellers are living. I also say that no additional circumstance or factor is imminent or pending by virtue of which the living conditions will worsen in the immediate future. I therefore say that in view of the absence of impending worsening conditions the situation will prevails is not an emergency as defined, for the purposes of Section 2 (9) of the City and County Council Management (Amendment) Act, 1955 and Section 2 (10) of the City and County Management (Amendment) Act 1955 as inserted by Section 27 of the Housing Act 1988. I also say that such .i icu ties as do exist stem from a failure on the part of the first named Respondent to discharge its statutory duty top provide accommodation for the travellers in Ennis."

That action was settled and that settlement is recorded in the order of McCracken J. dated 8th March 2001 in proceedings between Patrick Wynne & Others -v- Clare County Council & Others, bearing Record No. 2000/224 JR.

These matters are of particular importance in the light of the criticism by the Applicants of the Respondents' lack of attention to emergency accommodation referred in paragraph (63) of Mr. Moroney's original affidavit sworn on 17th May 2002.

Even if an emergency existed in the colloquial sense generated by or arising out of the matters that gave rise to the issuance of the Notice under Section 10 of the Housing (Miscellaneous Provisions) Act, 1992, the obligation of the Respondents is to respond to such emergency to the extent of its ability. The rights conferred by the Acts are real and to be honoured and given effect to - but this does not confer absolute and unqualified rights - they are resource dependent. It cannot have been the intention of the legislature that at all times and in all circumstances the Housing Authority would have available and vacant and ready for occupation either conventional permanent or conventional emergency accommodation (open to the acts of trespass and vandalism disclosed in the papers) in case of emergency. It is for the Housing Authority to prioritise the building programme necessary to house those entitled under the Acts - and to prioritise those whom it considers entitled to such accommodation under the TAP and/or on the Housing List.

In my judgment the Respondents discharged their statutory duty to provide suitable and adequate conventional housing for the Applicants at no. 8 Oakdown Drive. If, as a result of the Applicants leaving that accommodation and living on the side of the road to again create a situation of need and by creating circumstances of emergency or pressure on the Housing Authority, the Housing Authority cannot ignore any factual evidence of need but are entitled to take into account the entire circumstances of the Applicants including, if it be the case, how a previously stated need which had been satisfied had been treated or taken advantage of. It is not the duty of a Housing Authority to yield to a situation of pressure which has in whole or part been voluntarily created by an Applicant. Even if in the instant case the Respondents failed to provide the type of accommodation that the Applicants sought and wanted, such failure, in my judgment, does not amount to, nor is it a breach of statutory duty. The obligation of a Housing Authority is to respond to be a need not a want. An Applicant is of course entitled to express a preference for the type of accommodation he/she bona fide believes, grounded on objective evidence, is suited and meets his/her accommodation needs. There is however no obligation on the Housing Authority to provide immediately such specified accommodation - it must not only assess needs and priorities but have regard to all other persons who have needs and to its availability of accommodation. It is the function of the Housing Authority to adjudicate on the claims of the Applicants, not that of the Court.

I am satisfied and find as a fact that: It is not true to aver that the Applicant family has been left without suitable and adequate accommodation for significant periods and thereby to infer that the Respondents have completely neglected the Applicants' accommodation needs. Such is not the case.

I am satisfied and find as a fact on the evidence that in providing the Applicants with temporary halting site accommodation at Glenina, Gort Road, Ennis the Respondents never contended that such provision purported to adequately or sufficiently fulfil the performance in an absolute fashion of their obligation to provide the Applicants with suitable and adequate living accommodation.

I am likewise satisfied and find as a fact that the provision of temporary accommodation (enhanced by the upgrading in February 2004) was a lawful, adequate and sufficient provision by the Respondents of accommodation of a temporary nature for the Applicants pending the provision of permanent accommodation for them by the Respondents.

In the course of the hearing a letter dated 23rd February, 2004 to the Applicants' solicitors from the solicitors for the Respondents' was referred to wherein it was stated (inter alia):-

"That Mrs. Mary McDonagh qualifies for a four bedroom house and will be considered, together well all other housing applications received by Ennis Town Council, for the proposed housing development at Roslevan which is expected to be completed in summer 2005."

When invited to put the matter any further than stated in the letter Mr. James Connolly, SC for the Respondents, very wisely did not do so in the light of the decided cases of the obligation to consider all persons in need or deemed to be in need on the occasion of housing accommodation becoming available and no doubt mindful that any form of concession at the Bar could later be said to have consequences. Indeed in McDonagh -v- Cork County Council (unreported, High Court, 12th January 1998) Kinlen J. stated:-

"However, it is quite clear in this case that while there was possibly an expectation that they would get the house which they had chosen themselves, there is nothing in writing or anything sealed by the County Manager which would entitle him tomorrow specific performance. This court cannot order the local authority how to exercise its respective powers and direct for a certain person to be allocated a certain house in the absence of a specific contract."

In this case I am satisfied and find as a fact and a matter of law the Respondents have complied with the terms of the Housing Acts 1966-1998 and they have a scheme under Section 11 of the Act of 1988 and that they have and operating same and that the criticisms of O'Higgins C.J. in McDonagh -v- Feely (unreported Supreme Court, 23rd July 1980) and of Barron J. in The University of Limerick -v- Ryan & Others (unreported High Court, 21st February 1991) do not apply in this case.

In my judgment the facts in the instant case are clearly distinguishable from those in McDonagh -v Cork County Council heretofore cited and do not warrant an order for mandamus, here it is perfectly clear that the Respondents are aware of hair duties and will continue to carry them out and I find as a fact that there was no unfairness or discrimination against Mrs. Mary McDonagh and her family.

Accordingly I refuse the relief sought.