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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O Donnell(a minor) & Ors v South Dublin County Council [2007] IEHC 204 (22 May 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H204.html
Cite as: [2011] 3 IR 417, [2007] IEHC 204
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Judgment Title: O Donnell(a minor) & Ors v South Dublin County Council Composition of Court: Laffoy J. Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 204 THE HIGH COURT RECORD NO. 2006/1904 P BETWEEN/MARY O’DONNELL (A minor suing by her mother and next friend BRIDGET O’DONNELL) PATRICK O’DONNELL (A minor suing by his mother and next friend BRIDGET O’DONNELL) BERNARD O’DONNELL (A person of unsound mind, suing by his mother and next friend BRIDGET O’DONNELL) PLAINTIFFS AND SOUTH DUBLIN COUNTY COUNCIL DEFENDANT Judgment of Miss Justice Laffoy delivered on 22nd May, 2007.Factual background The plaintiffs are siblings. They are members of a traveller family and they reside with their parents Bridget O’Donnell (Mrs. O’Donnell) and Simon O’Donnell (Mr. O’Donnell) and other members of their family in a mobile home at Lynch’s Lane temporary halting site in Clondalkin, County Dublin. The facilities at Lynch’s Lane are provided by the defendant, which is the housing authority for the area in which it is located. The three plaintiffs suffer from a condition known as Hurler’s syndrome, sometimes called gargoylism. The condition is caused by the body’s inability to produce specific enzymes and leads to severe abnormalities in development resulting in orthopaedic complications with pain and immobility, obstructive airways disease with repeated respiratory infections, cardiac complications, visual impairment, loss of hearing and learning disability. Each of the plaintiffs has had a bone marrow transplant, aimed at halting the disease process and prolonging life. Each has had corrective surgery for joint contractures and other skeletal deformities. Functional performance across the range of personal activities of daily living is limited in each case. The first plaintiff (Mary) has just turned eighteen years of age, although she was a minor when the proceedings were commenced and at the date of the hearing. She attends St. Michael’s School in Chapelizod. She has had corrective surgery to her hips and knees. She has carpal tunnel syndrome in her right hand and poor manual dexterity bilaterally. Her vision is poor and she is awaiting a cornea transplant in both eyes. Her hearing is very bad and she underwent an operation some time prior to the hearing. She has a learning disability and her speech is unclear. On examination by Mary Patterson, occupational therapist, in January, 2006, Mary was found to be mobile without a walking aid. However, she had difficulty ascending and descending steps. Mary and her mother reported poor walking time and distance with frequent falls. Her knees and ankles were prone to swelling and were painful and she was constantly fatigued. She was found to have a limited range of movement in her upper limbs. As a result, she needs help in washing and drying and combing her hair and in dressing. She needs assistance in showering and needs to sit in the shower. She also suffers from nocturea. The second plaintiff (Patrick) is fourteen years of age. He also attends St. Michael’s School. He has undergone surgery to his knees, hips and wrists. He had a cornea transplant at the end of 2006 and at the date of the hearing was awaiting another. His hearing is very bad and he has a hearing aid in each ear. Ms. Patterson found that he was fully mobile without an aid, but he had a history of falls. Mrs. O'Donnell reported to the physiotherapist that he complained constantly of pain in his knees and that, following a period of inactivity, he had difficulty in moving from sit to stand because of stiffness and pain in the joints of his lower limbs. At the hearing, Mrs. O'Donnell testified that he can still walk without help, but that she is worried about the future. Patrick needs help putting on his socks and shoes because he is unable to bend and stoop. He is unable to reach over his head due to reduced range of movement at his shoulders. He needs assistance in washing his hair and showering. His manual dexterity and grip is reduced and he is unable to flex his fingers fully to form fists. The third plaintiff (Bernard) is of full age. He is now over twenty-one. He has had surgery to his hips, knees and hands. He has pronounced kypho-scoliosis, which causes persistent back pain. He has severe learning disability and his speech is indistinct. He has not been made a ward of court. His mother brings these proceedings as his next friend. He had a cornea transplant at the end of 2006 and at the time of the hearing was awaiting another. His hearing is poor. Mrs. O'Donnell testified that he is on antibiotic medication for life. Ms. Patterson found Bernard’s mobility to be limited. She found that he was poorly mobile in or around his home with a walking frame or pushing a wheelchair. He used the wheelchair for longer distances. He requires contact assistance from one person in order to negotiate a single step. Ms. Patterson found that within his home he became breathless on walking a short distance. Bernard requires help in dressing. He has reduced power and range of movement in his shoulders and has difficulty in bending and stooping. His father assists him to shower. Bernard attends Stewart’s Hospital Training Centre. In 2002 Bernard, suing by his next friend, Mrs. O'Donnell, brought proceedings against the defendant in this Court (Record No. 2002/3138P) in which he sought relief largely in the same terms as the relief sought in these proceedings, including an order requiring the defendant to provide accommodation for him as assessed and approved as being suitable to his needs, in particular, a wheelchair-accessible caravan, with indoor and wheelchair-accessible shower and toilet and adequate sanitary facilities and central heating. Those proceedings were compromised on terms that the defendant provided a wheelchair-accessible Pemberton Sovereign mobile home to accommodate Bernard as a wheelchair user. The mobile home was installed on Bay 18 at Lynch’s Lane, which had been occupied by the O’Donnell family since about 1996 in October 2002. The defendant also provided an external ramped access to facilitate wheelchair access and the mobile home was connected to the services to ensure that Bernard had access to indoor running water, toilet and sanitary facilities. The provision of the mobile home was funded by means of a disability grant in the sum of €40,000 made available to the defendant by the Minister for the Environment and Local Government under s. 15 of the Housing Act, 1988, as amended. That mobile home is currently occupied by ten persons: Bernard, Mary and Patrick and their parents and also two adult sisters of Bernard, two minor sisters of Bernard, who are aged sixteen and thirteen respectively, and a granddaughter of Mr. and Mrs. O'Donnell, who is ten years of age. The accommodation in the mobile home comprises two bedrooms, a living area and a bathroom with level access shower, toilet and wash hand basin. The six girls, including Mary, sleep in the larger of the two bedrooms in two beds, three to a bed. Bernard and Patrick share the smaller bedroom, which as two 3 ft. beds. Mr. O'Donnell and Mrs. O'Donnell sleep in the living area, bringing in a mattress at night and taking it out in the morning. The O’Donnells have lived at Lynch’s Lane since the temporary halting site was opened in 1996. Before the Pemberton mobile home was provided in compromise of Bernard’s proceedings in 2002, there were two caravans on Bay 18. Mrs. O'Donnell’s evidence was that one belonged to another son and that now occupies Bay 27 in Lynch’s Lane, where the son and his family live. The second was hers but it was old and, because of its condition, was scrapped. As is required under the Housing (Traveller Accommodation) Act, 1998 (the Act of 1998), the defendant has in place a Traveller Accommodation Programme (the Programme), which was adopted on 9th May, 2005 and covers the period from 1st January, 2005 to 31st December, 2008. In the course of the assessment carried out by the defendant of traveller accommodation needs in connection with the Programme, Mrs. O'Donnell was interviewed and expressed a preference for a bay in a residential caravan park in Clondalkin as permanent accommodation for her and her family, rather than accommodation in standard housing or group housing. In implementation of the Programme, the defendant is in the course of developing a permanent facility at Lynch’s Lane which will comprise ten residential caravan bays and ten group houses. Mr. Philip Murphy, Senior Executive Officer of the Housing Department, testified at the hearing that, while that development had been delayed between 2000 and 2005 for a variety of reasons including local opposition and litigation, it is now on target and should be ready by the middle of 2008. The evidence is that the O’Donnell family will be provided with a large bay in that development, which will be tarmacadamed and will accommodate two or three caravans and it will also have a day house, which will have a kitchen and daytime living area and will be fully serviced to accommodate the O’Donnell’s needs. It was suggested by an officer of the defendant to Mrs. O'Donnell early in 2005 that, having regard to the medical condition of the plaintiffs, she might consider an offer of a specially adapted house in the new Lynch’s Lane facility. However, Mrs. O’Donnell’s position is that, as a traveller, she would not be happy living in a house; she wants a bay and she wants her children living in mobile homes in the bay with her. I am satisfied on the evidence that the suggestion about a suitably adapted house was merely a suggestion, which I have no doubt the officials of the defendant bona fide considered to be in the best interests of the plaintiffs, which never evolved into a specific offer. Over the past year the defendant has been upgrading the existing temporary facilities at Lynch’s Lane. The utility pod on Bay 18 was replaced last year. The new utility pod has been adapted for special needs with a ramp and grab rails. It is heated by a blow heater. Works have been carried out to the ground at Bay 18 to render it level and suitable for wheelchair use. The defendant accepts that the plaintiffs are living in overcrowded conditions in the Pemberton mobile home, but suggests that the overcrowding is of the O’Donnell’s own making. Mrs. O'Donnell has been advised by officers of the defendant to apply for a caravan loan to enable her to acquire a caravan to accommodate some members of her family. The maximum loan for purchase of a new or second-hand caravan payable under the Traveller Accommodation Schemes, which was laid down in Circular Letter TAU 4/2002 dated 22/2/02, is €6,350. Mrs. O'Donnell has not applied for a loan. Indeed she has rejected the loan as a solution to the family’s accommodation problems on two grounds. First, she contends that she could not get a suitable caravan for €6,350. Despite Mr. Murphy’s evidence to the contrary, I am far from convinced that it would be possible to acquire a second-hand caravan, eight to twelve years old, in excellent condition and fully serviceable and ready to move into for €6,350. I am satisfied that it would not be possible to acquire the type of caravan or mobile home, which would be suitable for Mary or any of the plaintiffs at that price. The second reason is that Mrs. O'Donnell is of the view that she would not be able to service the loan. The loan would be repayable over five years at the rate of €20 per week. Leaving aside the income of Mr. O'Donnell from his business of dealing in scrap and recycled vehicles, between them, the adult members of the O’Donnell family who reside in the Pemberton mobile home in 2006 had a weekly income of €993.20, comprising unemployment assistance paid to the plaintiffs’ two adult sisters, carer’s allowance paid to Mrs. O'Donnell and disability assistance paid to Bernard and Mary. In addition, Mrs. O'Donnell was in receipt of €670 per month in respect of children’s allowance. The defendants calculation is that, disregarding Mr. O’Donnell’s income, the weekly household income was €1,317.75, which equates to an annual income of €68,263.00. I assume those benefits have increased in 2007. While I have no doubt that there are many calls on that income, I do not accept that, if the caravan loan was a solution to the problem, Mrs. O'Donnell and the other members of her family could not fund the loan repayments. Expert evidence Ms. Patterson’s evidence was that the Pemberton mobile home is seriously overcrowded. The space available is inadequate having regard to the needs of the family members with disability. Bernard has been supplied with a mobile shower chair, but there is insufficient space in his bedroom for either that chair or his wheelchair. The three plaintiffs require assistance with dressing and washing. On school days they have to be ready by 8 o’clock in the morning when they are collected by bus and the able-bodied children also have to be ready around the same time. The three plaintiffs suffer from visual impairment and, in the crowded environment, their safety is compromised. They have no privacy when using the shower room independently, because the sliding door is awkward and heavy and cannot be closed by any of them. Bernard’s mobility has deteriorated as he has grown older. Ms. Patterson’s view was that it was to be expected that Mary and Patrick will suffer similar limitations as they grow older as they face increased orthopaedic complications. However, Ms. Patterson could not say when the condition of either will deteriorate in the future. Ms. Patterson’s opinion was that, in order to alleviate the overcrowding situation, a second wheelchair-accessible mobile home is required, with ramped access in order to accommodate mobility restrictions. Ideally, in her view, it should have three bedrooms. But she acknowledged that the provision of wheelchair-accessible showering and toileting facilities reduces the space available for bedrooms within a mobile home. Her opinion is that appropriate showering facilities are essential to meet existing and long-term functional limitations of the plaintiffs. In line with Ms. Patterson’s recommendation, Mrs. O’Donnell envisaged that the new mobile home would be for Mary. The girls would live there with her and her eldest sibling would look after her. The existing Pemberton mobile home would be for Bernard and Patrick and Mr. and Mrs. O'Donnell. Ms. Patterson’s opinion was that the room which Bernard and Patrick currently share is not of sufficient size and they need a bigger room. The bigger room would be available, if Mary moved out to another mobile home. Fiona Maguire, occupational therapist, gave evidence on behalf of the defendant. Ms. Maguire was retained by the defendant in October, 2004 to carry out an assessment regarding the long-term housing needs of Bernard, Mary and Patrick for both a residential caravan bay and group housing, in the context of the proposed new development at Lynch’s Lane. Ms. Maguire reported on 21st January, 2005. She has not been asked to update her report since then. Ms. Maguire pointed out that the bedroom occupied by Bernard and Patrick did not allow for storage of Patrick’s wheelchair. The mobile home would be fully wheelchair accessible if the larger bedroom were occupied by Bernard and if one bed was removed. The smaller bedroom would be suitable for Patrick, again if one bed was removed. An alternative approach to accommodating Bernard and Patrick was also suggested: they could be accommodated in the main bedroom in the mobile home, which would allow an able-bodied family member to be accommodated in the smaller bedroom, which in Ms. Maguire’s opinion would undoubtedly better accommodate the needs of Bernard and Patrick. While in Ms. Maguire’s opinion those suggestions would alleviate the obvious overcrowding and the consequent compromise to wheelchair access in the mobile home, she also recognised that they would necessitate suitable alternative accommodation being provided for Mary and the other family members. The only difference which I discern between Ms. Maguire’s assessment in 2005 and Ms. Patterson’s assessment in 2006 is that Ms. Maguire was of the view that Mary was then able to climb steps and should be able to manage steps provided they were not excessively high. As I have already recorded, Ms. Patterson’s assessment a year later was that ascending and descending steps presented a difficulty for Mary. Ms. Maguire recognised that wheelchair access might become essential for Mary and also that Patrick’s mobility might disimprove to a degree where he would also have to use a wheelchair. In either event, the facilities would have to be modified or extended for them. While Mary’s need for wheelchair accessible accommodation at this point in time was the subject of much debate at the hearing, the fact is that she needs accommodation and, given her condition, prudence would seem to suggest that it should be wheelchair accessible. In her report in 2005 Ms. Maguire also made recommendations in relation to the provision of a satisfactory recreational and play area for Bernard, Mary and Patrick around the mobile home. As I understand Mr. Murphy’s evidence, her recommendations have been implemented. Ms. Maguire readily acknowledged at the hearing that the accommodation available for the plaintiffs is far from ideal and that they require more space. Mr. Murphy’s suggestion that the family arrangements could be configured to meet the plaintiffs’ special needs if the able-bodied members moved into a standard caravan is at variance with the analysis of the experts. On the evidence, it is clear that it is Mrs. O'Donnell’s wish and her intention that Bernard, Mary and Patrick will continue to be cared for within their home environment. Because of the nature and extent of their disabilities and their dependency, they require a considerable degree of care and supervision and this is likely to increase in the future. In my view, it is beyond doubt that even in the short term there is an urgent necessity that they be provided with more appropriate accommodation, which they do not have at present, their current accommodation being grossly over-crowded, potentially unsafe for them and wholly unsuitable to their special needs. The issue in this case is whether there is any obligation on the defendant to make that provision. The claim and defence as pleaded In these plenary proceedings, the plaintiffs claim that the defendant is in breach of its statutory duties to them and is in breach of their constitutional rights and their rights under the European Convention on Human Rights (the Convention). The primary relief the plaintiffs seek is an order requiring the defendant to provide accommodation for them, as has been assessed as being suitable to their needs, in particular a second wheelchair-accessible mobile home with ramped access and appropriate showering and toilet facilities. In the alternative, they seek an order that the defendant make sufficient funding available to the plaintiffs to enable them to provide such accommodation. In broad outline, the defendant takes a somewhat different approach in answering Bernard’s claim to the approach adopted in answering the claims of Mary and Patrick. In relation to Bernard’s claim, it is contended that he is estopped from maintaining the proceedings because of the 2002 proceedings, the settlement thereof and the fact that the settlement was approved by the court. Alternatively, it is contended that the bringing of these proceedings on behalf of Bernard is an abuse of process. Without prejudice to that position, the defendant denies that Bernard has an entitlement to be provided with or has a need for a wheelchair-accessible mobile home as claimed, given that he was provided with a Pemberton mobile home in 2002. In relation to Mary and Patrick, the defendant denies that either is entitled to be provided with, or has need of, a wheelchair-accessible mobile home as claimed and asserts that the overcrowding conditions in which they are living can be relieved by the acquisition of another caravan by their parents. The defendant denies any breach of its statutory duties and asserts that it is carrying out its duties, asserting that it has provided the site (Bay 18) at Lynch’s Lane and the existing facilities for the plaintiffs and the Pemberton mobile home. It also asserts that it has assessed the plaintiffs’ long-term accommodation needs and that appropriate permanent accommodation will be provided for them under the Programme in the new development at Lynch’s Lane. In the interim, it asserts, it has made reasonable efforts to meet their temporary accommodation needs and for the provision of financial assistance by means of loans and grants. The specific breaches of statutory duty, constitutional rights and of the provisions of the Convention alleged by the plaintiffs are denied. Scheme of judgment There is a certain degree of overlap between the various breaches alleged and the relief claimed by the plaintiffs. Further, having taken an overview of the submissions made, it seems to me that certain aspects of the submissions can conveniently be dealt with in tandem. For those reasons, I propose addressing the following issues and the submissions made by the parties and setting out my conclusions in the following order: (1) Whether there has been a breach by the defendant of its statutory duties under the Housing Acts, as properly construed having regard to the provisions of the Constitution and s. 2 of the European Convention on Human Rights Act, 2003 (the Act of 2003). (2) Whether there has been a failure on the part of the defendant to perform its functions in a manner compatible with the State’s obligations under the Convention, in particular, articles 3 and 8 of the Convention, and whether a remedy is available to the plaintiffs under s. 3 of the Act of 2003. (3) Whether the plaintiffs have established any breach of the Equal Status Act, 2000 (the Act of 2000) or any failure on the part of the defendant to perform its functions in a manner compatible with article 14 of the Convention. (4) Whether the plaintiff’s constitutional rights have been infringed by activity or inactivity on the part of the defendant. (5) Whether Bernard is estopped or, as regards his participation, these proceedings are an abuse of process. One matter raised on the pleadings - whether the plaintiffs have a case on the basis that the defendant has acted in breach of the State’s duties arising from international legal covenants - was not pursued on behalf of the plaintiffs at the hearing and I do not propose to address it. Another matter - whether the plaintiffs can rely on the Disability Act, 2005 – was raised on behalf of the plaintiffs, although not pleaded at all. I do not propose to address that matter because, although counsel for the defendant evinced a reasonable attitude, I consider that the novel and important issues which that Act raises should be left for a forum in which they have been fully explored in the pre-trial process and at the hearing. Before considering the issues outlined, I have some general observations to make. First, I think it is important to emphasise at this juncture that the defendant is a defendant to these proceedings in its capacity as a local authority and as the housing authority for the area in which Lynch’s Lane is situated. Other organs of the State, no doubt, owe duties to the plaintiffs because, in the case of Patrick and until recently Mary, of their minority status, and, in the case of all three, the state of their health and their disabilities. Moreover, no doubt there are administrative schemes operated by organs of the State from which they could benefit. I mention this because counsel for the defendant in their submissions referred to the Disabled Persons’ Grant Scheme operated by the Department of the Environment and Local Government, which they stated is discretionary and subject to the largesse of the Minister for Finance. This judgment is concerned only with whether the defendant has liability to the plaintiffs for any of the alleged breaches of the plaintiffs’ rights. Secondly, while there is an inherent contradiction in the manner in which the defendant ultimately responded to Bernard’s proceedings in 2002 in the settlement thereof and its response in these proceedings to the claims of Mary and Patrick, I consider that it would be inappropriate to attach any weight to that factor in addressing the legal issues which arise here. Breach of the Housing Acts? One of the reliefs sought by the plaintiffs is a declaration that the defendant, in failing to provide for the accommodation needs of the plaintiff’s, has acted in breach of its duties, including its statutory duties under the Housing Acts, 1966 to 1988, the Act of 1998 and the Department of the Environment and Local Government Guidelines pursuant thereto. Specifically, the provisions of the Housing Acts which the plaintiffs allege impose a duty on the defendant to provide them with the accommodation which they seek and which they allege have been breached are: (a) ss. 9 to 13 of the Housing Act, 1988 (the Act of 1988): (b) ss. 6 to 17 and s. 24 the Act of 1998 and (c) s. 138 of the Local Government Act, 2001 (the Act of 2001). In the Act of 1988, for the first time, the provision by a housing authority of housing accommodation for travellers was addressed. Section 9 required a housing authority to carry out periodic assessments of the need for provision by the authority of adequate and suitable housing accommodation for persons requiring or likely to require such accommodation who were unable to provide it from their own resources. Sub-section (2) of s. 9 directed that a housing authority should have regard to the needs of certain categories of persons for example, homeless persons and persons to whom s. 13 applied. Section 13 applied specifically to travellers. Sub-section (2) of s. 13, as now contained in s. 29 of the Act of 1998, provides as follows:
The response of counsel for the plaintiffs to that was not to point to a provision in the Housing Acts which empowers or mandates a housing authority to provide a caravan or a mobile home. No such provision exists, although s. 30 of the Act of 1998 amended s. 15(1) of the Act of 1988 to enable regulations be made providing for a grant or a subsidy toward the provision of a caravan out of public funds. The response was that the statutory of provisions relating to the defendant’s duty towards the traveller community, by virtue of s. 2 of the Act of 2003, must now be construed and applied in a manner that is consistent with the articles of the Convention they invoke, in particular, articles 3 and 8. However, that argument was advanced in a general way and they did not indicate precisely what specific provision should be interpreted as required by s. 2 or what meaning should be ascribed to such provision, which would not be open but for the application of s. 2, which provides as follows:
40. Up to this point there is no difficulty. The area of real difficulty lies in identifying the limits of interpretation in a particular case. … For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation. The boundary line may be crossed even though a limitation on Convention rights is not stated in express terms. Lord Steyn’s observations in R v. A …, para. 44 are not to be read as meaning that a clear limitation on Convention rights on terms is the only circumstance in which an interpretation incompatible with the convention may arise.” The plaintiffs’ submission that relevant statutory provisions must be construed having regard to the provisions of the Constitution is no more fruitful than their submission based on s. 2 of the Act of 2003. The plaintiffs referred the court to the decision of Costello J. in O’Brien v. Wicklow Urban District Council (Unreported, 1st June, 1994) and in particular the following passage:
To interpret s. 13(2) as mandating a housing authority to provide a mobile home for a traveller, or even a seriously disabled traveller, would, it seems to me, be usurping the functions of the Oireachtas. Sections 6 to 17 of the Act of 1998 contain provisions imposing duties on a housing authority to assess the need for sites when making an assessment under s. 9 of the Act of 1988, to adopt an accommodation programme specifying the accommodation needs of travellers after going through certain processes, and to secure the implementation of the accommodation programme. The defendant’s position is that it has complied with those provisions in the Programme for 2005 to 2008 and in the provision they are making for the plaintiffs under the Programme. It is unfortunate that the defendant encountered opposition in implementing its plans in relation to the development of the new facility at Lynch’s Lane. However, the difficulties appear to have been surmounted and hopefully the new facility will be ready for use in August, 2008 as is anticipated. In my view, the plaintiffs have not established any breach of the provisions of ss. 6 to 17 of the Act of 1998. Section 24 of the Act of 1998, as amended by the Act of 2001, provides that nothing in the Act of 1998 shall prevent a manager from exercising the powers conferred on a manager under sub-ss. (4) and (5) of s. 138 of the Act of 2001 in an emergency situation. Sub-section (4) empowers a manager to deal with an emergency situation calling for immediate action without regard to ss. (1) to (3), which impose a duty on him to inform the elected members of the council before embarking on any works, other than works for maintenance, or before committing the local authority to any expenditure in connection with the proposed works, other than maintenance and repair. Sub-section (5) provides that an emergency situation is deemed to include a situation where the works concerned are urgent and necessary, having regard to personal health, public health or safety considerations, in order to provide a reasonable standard of accommodation for any person. The plaintiffs submitted that s. 24 and s. 138 should be construed as providing for a duty on the part of the defendant to act in circumstances of urgency. Even if that submission is correct, it does not avail the plaintiffs because they have failed to point to a substantive provision of the Housing Acts which obliges the defendant to do what they say should be done. For the reasons outlined, in my view, the plaintiffs have not established an entitlement to a declaration that the defendant, in failing to provide for the accommodation needs of the plaintiffs in the manner in which they assert they should be provided for, has acted in breach of any of its duties under the Housing Acts. Breach of Convention/Act of 2003 One of the reliefs claimed by the plaintiffs is a declaration that the defendant, in failing to provide for their accommodation needs, has acted in breach of the Convention and in breach of s. 3 of the Act of 2003. The plaintiffs also claim damages, including damages under s. 3 of the Act of 2003. Section 3(1) of the Act of 2003 provides as follows:
The plaintiffs have invoked article 3 and article 8 of the Convention. Article 3 provides:
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.” Chapman v. The United Kingdom (2001) 33 EHRR 399 was a decision of the ECHR, Grand Chamber, delivered on 18th January, 2001. Mrs. Chapman was a Gypsy by birth. Her complaint was that the refusal of planning permission to station caravans on her land and the enforcement measures implemented in respect of her occupation of her land constituted a violation of article 8. The ECHR stated (at para. 95) that to accord to a Gypsy who has unlawfully stationed a caravan at a particular place different treatment from that accorded to non-Gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under article 14 of the Convention. However, it went on to state (at para 96), that, although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment, it may have an incidence on the manner in which such laws are implemented. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyles both in the relevant regulatory planning framework and in reaching decisions in particular cases. The court stated that, to that extent, there is thus “a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.” Having stated that it appeared from the material placed before the ECHR that the provision of an adequate number of sites in the United Kingdom which Gypsies found acceptable and on which they could lawfully place their caravans at a price which they could afford was something which had not at that point in time been achieved, the court continued (at para. 98) as follows:
In R. (Bernard) v. Enfield London BC [2003] L.G.R. 423, which was a decision of the Queen’s Bench Division of the English High Court, the claimants, who were husband and wife, sought damages for breach of their rights under articles 3 and 8 of the Convention on the basis that the defendant local authority had not provided them with accommodation in accordance with an assessment of their needs. The husband and wife lived with their six children in accommodation provided by the defendant. The wife was severely disabled and the accommodation had not been adapted to her needs. The defendant undertook an assessment of their needs in September, 2000 and concluded that the family needed to be re-housed in accommodation suitably adapted. After the court had made a mandatory order in the proceedings directing the defendant to provide the claimants with accommodation in accordance with their assessment, the defendant complied with the order in October, 2002. The issue which the court was concerned with in the judgment delivered on 25th October, 2002 was whether the claimants were entitled to damages. In dealing with the claim under article 8, Sullivan J. noted that, while the main thrust of article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the ECHR has recognised that article 8 may require authorities to take positive measures to secure respect for private or family life, citing and quoting from Botta v. Italy (1998) 26 EHRR 241. In the passage from the judgment of Sullivan J. relied on by counsel for the plaintiffs (at para. 32 et seq.) he stated as follows:
The domestic provision at issue in R (Bernard) v. Enfield L.B.C., s. 21 of the National Assistance Act, 1948, which empowers a local authority to “make arrangements providing … residential accommodation for persons aged 18 or over who by reason of age, disability or other circumstances are in need of care and attention which is not otherwise available to them …” was also in issue in one of the appeals which were dealt with by the Court of Appeal of England and Wales and are reported as Anufrijeva v Southwark London B.C. [2004] 1 All ER 833. The Anufrijeva claimants were members of a family who claimed that their local authority failed to respect their private and family life, contrary to article 8. The basis of the claim was that the local authority failed to discharge their duty under s. 21 to provide them with accommodation that met the special needs of one elderly member of the family, with the result that the quality of family life was drastically impaired. Delivering the judgment of the Court of Appeal, Lord Woolf C.J. reviewed the decision in R (Bernard) v. Enfield London B.C., noting (in para 40) that, so far as article 3 was concerned, no issue had been raised before Sullivan J. as to there being a positive duty to provide accommodation that would not subject the claimants to conditions that constituted inhuman or degrading treatment. The only issue was whether the degree of severity of the claimants’ predicament reached the article 3 threshold. Lord Woolf C.J. noted that “with some hesitation” Sullivan J. had concluded that it did not, but he had held that it was a clear breach of article 8. Paragraphs 32 to 34 of the judgment of Sullivan J. were quoted. The conclusions of the Court of Appeal on the judgment of Sullivan J. were set out at para. 43 as follows:
The most recent decision of the ECHR dealing with article 8 to which the court was referred was the decision in Moldovan & Ors. v. Romania (application Nos. 41138/98 and 64320/01), in which judgment was delivered on 30th November, 2005. Counsel for the plaintiffs emphasised that this decision post-dated the decision of the Court of Appeal in Anufrijeva. The complexity of the facts in the Moldovan case gave rise to a multiplicity of issues. The essential facts were that, during a fracas in a bar in a village in Romania in which the applicants, who were of Roma origin lived, a non-Rom was killed, following which three Roma involved fled the scene. This led to attacks on Roma living in the village and on their property. Thirteen Roma houses belonging to the applicants were destroyed. In invoking articles 3 and 8 of the Convention, the applicants complained that, after the destruction of their houses, they could no longer enjoy the use of their homes and had to live in poor, cramped conditions. They alleged the involvement of State officials in the destruction of their homes. They claimed that the Romanian Government had a positive obligation under article 3 to provide sufficient compensation to restore them to their previous living conditions. They alleged that the reconstruction funds had been mis-managed by local officials and that the houses which were re-built by the State were badly constructed and largely uninhabitable. They contended that the government’s failure in respect of their positive obligations had resulted in families with small children and elderly members being forced to live in cellars, hen houses, stables, burnt-out shells, or to move in with friends and relatives in such overcrowded conditions that illness frequently occurred. In outlining the general principles applicable, the ECHR stated (at para. 93):
In applying the principles to the facts of Mr. Moldovan and the other applicants the court found that there had been a violation of article 3. There also had been a serious violation of article 8 of a continuing nature in the hindrance by, and repeated failure of, the authorities to put a stop to the breaches of the applicants’ rights. On the issue of living conditions, the ECHR stated (at para. 110):
Coincidentally, the applicants in Doherty v. South Dublin County Council & Ors. were an elderly couple residing in a caravan in the temporary halting site at Lynch’s Lane, who are to be accommodated in the new facility at Lynch’s Lane. Their complaint was that, being in poor health, and having regard to the condition of the mobile home in which they resided, which had only basic electricity supply, had no internal plumbing, no internal toilet and shower facilities, no central heating and was cold and damp, the failure of the respondents to provide them with a centrally-heated, insulated and, internally plumbed caravan was in breach of, inter alia, s. 3 of the Act of 2003. In the proceedings, which were by way of judicial review proceedings in which the Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General were respondents, in addition to South Dublin County Council, and to which the Equality Authority was a notice party, the applicants invoked articles 3, 8 and 14 of the Convention. As I have stated, Charleton J. quoted from the judgment of the Court of Appeal in Anufrijeva. At para. 40 he stated:
Having considered the decision of the ECHR in Chapman and its later decision of 7th February, 2006 in Codona v. The United Kingdom, in which Chapman was followed, Charleton J. set out his decision on the claim by reference to article 8 (at para. 45) as follows:
The general proposition advanced by the Court of Appeal in the Anufrijeva case, that it was difficult to conceive of a situation in which the predicament of an individual would be such that article 8 would require him to be provided with welfare support, where his predicament was not sufficiently severe to engage article 3, raises the question whether the conclusion I have reached on the plaintiffs’ claim that article 3 was breached precludes the plaintiffs from maintaining a case that the failure to provide a wheelchair accessible home for Mary is a breach of article 8. It must be acknowledged that it could be argued that that proposition is not at variance with the decision of the ECHR in Moldovan, where the court looked at the applicant’s bad living conditions in combination with the general attitude of the authorities, which it concluded led to humiliation and debasement and where the court actually found that there had been a breach of article 3. Notwithstanding that, the conclusion I have come to is that it is open to this Court to make a finding on the facts of this case that there has been a breach of article 8, even though I conclude that it is not appropriate to make a finding that there has been a breach of article 3. The question which arises in determining whether there has been a breach of article 8 is whether practical and effective respect for the private and family life and of the home of each of the plaintiffs requires the defendant to adopt the measure which the plaintiffs contend is necessary to alleviate the overcrowded and potentially unsafe conditions in which the plaintiffs are living. That question has to be considered in the context that the defendant accepts that the provision in the temporary halting site at Lynch’s Lane which the defendant has made, and which the plaintiffs, their parents and siblings are now availing of, is not adequate or sufficient to fulfil the defendant’s obligation to provide the plaintiffs with suitable and adequate living accommodation. It has also to be considered in the context that the defendant is committed to remedying that situation by the summer of 2008 when accommodation in the new facility at Lynch’s Lane will be available. Therefore, the issue boils down to whether the compliance with article 8 requires that another wheelchair accessible mobile home be made available for occupation and use by Mary, so that her living conditions and those of Bernard and Patrick can be brought to an acceptable level now. In determining that issue the court must strike a fair balance between competing interests, the interests of the community as a whole, on the one hand, and the interests of the individual plaintiffs, on the other hand, within the margin of appreciation which the ECHR has held the State has. As long ago as January, 2005, Ms. Maguire reported to the defendant on the overcrowding in the Pemberton mobile home and the necessity for more accommodation for Bernard, Mary and Patrick. The inevitable delay which was going to be encountered in completion and commissioning of the new Lynch’s Lane facility was clearly known to the defendant at that stage. The general interest which has to be weighed in the balance against the effect of having to live in overcrowded, potentially unsafe and admitted inadequate accommodation for three and a half years and, perhaps, longer, which is what the defendant’s refusal to fund the second mobile home has consigned the plaintiffs to, in the terminology of article 8, is the economic well being of the State. It is possible to evaluate the impact on the economic well being of the State of providing the second mobile home for the plaintiffs: the cost will be in the region of €58,000 and the installation cost and the cost of connecting it with the services and such like. This case is very unusual, if not unique. It is difficult to comprehend the level of disability, hardship and deprivation which Bernard, Mary and Patrick endure between them. That Mrs. O'Donnell desires, and intends, to care for them with the assistance of other members of her family in the home setting must be in their best interests and it must be in the interest of the State and its organs to facilitate her in so doing. This is not a case which is based on an assertion that the State or any of its organs has a positive obligation to make certain provision for every traveller family, for instance, that the State should legislate or have an administrative scheme to provide two de luxe mobile homes for every traveller family. This case is about the particular circumstances of one family, which has three severely disabled members, two of whom were minors when these proceedings started, who to the knowledge of the defendant have been living in unacceptable conditions since 2005 and whose plight is not going to be alleviated until August, 2008 at the earliest, if it will be then. I express that reservation because it is by no means clear that, from August, 2008 onwards, the plaintiffs will have adequate sleeping accommodation with suitable sanitary facilities at the new facility, because what the defendants officers have in contemplation is to move the Pemberton mobile home onto the large bay and to encourage Mr. and Mrs. O’Donnell to acquire a standard caravan for which there will be space in the bay The offer of a loan of €6,350, which I have found would not be sufficient to fund the acquisition of a second suitable caravan or mobile home for Mary, even with the possibility of a €500 grant, is not a sufficient answer to ensure that the rights of Bernard, Mary and Patrick under article 8 are effectively and practically respected. As regards its factual component, this case is very similar to the Bernard case, if not worse. In my view, it is open to the court to make a finding on the facts that there has been a breach of article 8. I so find. Counsel for the defendant, in addressing the relevance of the decision in the Moldavan case to this case, submitted that there is nothing in the relevant legislation here, the Housing Acts, which can be pointed to as a gap in the protection of the plaintiffs. The judgment of the Court of Appeal in Anufrijeva suggests that a breach of positive obligations under domestic law, although it may be indicative of, is not an essential prerequisite to an infringement of article 8. In my view, given that the defendant has argued successfully that the defendant does not have a statutory obligation to provide a suitable mobile home for Mary, and that there has been no breach of a positive obligation of domestic law, there must be a gap in the protection of the plaintiffs. Sections 9 to 15 of the Act of 1988, impose obligations on housing authorities to address housing requirements, including need arising from inter alia, overcrowding and disability or handicap. Sections 6 to 17 of the Act of 1998 impose additional obligations on a housing authority in relation to traveller accommodation. If there is no statutory protection for the plaintiffs in their current predicament which ensures suitable and appropriate accommodation for them having regard to their age, mental condition, disability, dependency and family circumstances, the interstices into which they have fallen must represent a failure of the State and its organs to function in a manner compatible with article 8. Having regard to the special facts of this case, in my view, a finding that article 8 has been breached in this case does not amount to the court “second guessing” the housing authority or acting as a “shadow housing authority”, as the defendant contended. The Oireachtas has legislated in s. 3 of the Act of 2003 that a housing authority shall perform its functions in a manner compatible with the Convention. For completeness, I should say that, as was urged on behalf of the plaintiffs, I consider the Doherty case to be distinguishable on the facts. The applicants in that case were offered accommodation pending the completion of the new facility at Lynch’s Lane which the court considered that it was reasonable that they should avail of. I believe that that the level of disability and dependency of Bernard, Mary and Patrick and the degree of care and supervision they require and the appalling conditions in which they and their carers are living and the meagre inadequate assistance proffered by the defendant distinguishes the factual situation in this case from the factual situation in the Doherty case, which Charleton J. summed up in the following passage in his judgment (at para. 42):
Act of 2000/Article 14 breached? One of the reliefs sought by the plaintiffs is a declaration that the defendant, in failing to accommodate their special needs, or in failing to make the funding available to them to enable their needs to be met, has discriminated against them as persons suffering from a disability and/or as members of the traveller community contrary to the Act of 2000 and incompatible with the State’s obligations under article 14 of the Convention, thereby giving rise to a breach of s. 3 of the Act of 2003. Both the claim under the Act of 2000 and the claim by reference to article 14 can be disposed of summarily. As counsel for the defendant submitted, the plaintiffs have neither put forward a factual basis in the statement of claim to justify a complaint of discrimination nor was any evidence adduced that the defendant had discriminated against them on the grounds alleged or any ground. Aside from the fact that, having succeeded under article 8, it is unnecessary to address the plaintiffs’ claim under article 14, the position is that the plaintiffs have made no case that there was different treatment as respects a substantive Convention right meted to them, on the one hand, and to other persons they have put forward as comparators, on the other hand. Therefore, they have made out no case on discrimination under article 14. Similarly, no question of discrimination having occurred within the meaning of the Act of 2000 arises because the plaintiffs have made out no case on the pleadings or on the evidence of having been treated less favourably on any ground than any other person or persons. Infringement of the plaintiffs’ constitutional rights? The plaintiffs also seek a declaration that the defendant, in failing to provide for their accommodation needs, has acted in breach of their constitutional rights. The claim for damages also covers alleged breach of constitutional rights. The plaintiffs’ allegation of such breach, as pleaded, is that the defendant failed to properly respect, vindicate and act in accordance with their constitutional rights, including their right to bodily integrity, their right not to have their health endangered, and their right to respect for their private and family life. I have already outlined the argument advanced on behalf of the plaintiffs that the statutory provisions of the Housing Acts should be construed in the light of the Constitution by reference to the judgment of Costello J. in O’Brien v. Wicklow Urban District Council. While the right to bodily integrity is one of the unenumerated personal rights guaranteed by Article 40.3.1 of the Constitution, the plaintiffs did not develop the argument to show how the defendant, on the facts of this case, should be held to have infringed the right of each of the plaintiffs to bodily integrity. Counsel for the defendant addressed the issue on the basis that what the plaintiffs were claiming was the right to be provided with accommodation which, if it was to be found in the Constitution, could only be found in an unenumerated personal right guaranteed by Article 40.3.1. Counsel reminded the court of the caveats issued by the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259: first that, save where an unenumerated right has been unequivocally established by precedent, for example, the right to travel and the right to privacy, some degree of judicial restraint is called for in identifying new rights (per Keane C.J. at p. 281); and, secondly, the inadvisability of the courts at any stage assuming the function of declaring what are frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40 (per Keane C.J. at p. 282). Finally, counsel referred to the passages in the judgment of Murphy J. in the T.D. case, which the Chief Justice earlier had commended in his judgment, in relation to that second point, including the concluding paragraph of his judgment in which Murphy J. stated (at p. 321):
Estoppel/res judicata abuse of process The defendant’s contention that Bernard is estopped from bringing these proceedings, or alternatively, these proceedings are an abuse of process, is based on the fact that Bernard’s proceedings in 2002 were compromised and that Bernard’s current action is similar to the action he brought in 2002. In my view, that analysis is not factually correct. Bernard is not trying to re-litigate the claims which were settled in 2002. His claim relates to the circumstances which have prevailed since October 2002 and the family circumstances as a result of which he has not been adequately or suitably accommodated, having regard to his disability and dependancy, in recent years. Accordingly, in my view, the objection based on estoppel and abuse of process is misconceived. Remedy On the basis of the plaintiffs’ claim as formulated, the only remedy which the court can provide for the breach it has found of article 8 of the Convention is an award of damages. The only evidence which has been adduced which would go towards measuring the damages is that the cost of the Pemberton mobile home of the type provided for Bernard. The evidence is that a similar mobile home would cost €58,000 today. I propose adjourning the matter, to give the parties an opportunity to consider this judgment and to decide how to proceed from here. Finally I wish to emphasise that the claims with which I have dealt are the claims of Bernard, Mary and Patrick and the overall case has been presented on the basis that a new mobile home is required to accommodate Mary. Whatever approach is adopted as a result of this judgment, in my view, whatever assets accrue to the plaintiffs should be secured for the plaintiffs, not for the O’Donnell family generally.
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