THE SUPREME COURT
[CASE NO. 308/2012]
McKechnie J. Charleton J. Finlay Geoghegan J. MARK KELLY
Applicant/Respondent
-and-
DUBLIN CITY COUNCIL
First Named Respondent/Appellant
-and-
IRELAND
Second named Respondent
-and-
THE ATTORNEY GENERAL
Third Named Respondent
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 29th day of May, 2019
1. Dublin City Council, as housing authority, utilised the provisions of s. 20 of the Housing (Miscellaneous Provisions) Act 1997, to have Mr. Kelly forcibly removed, by the gardaí, from a dwelling house known as 17 Marewood Drive, Ballymun, Dublin 11, on 2nd December, 2011. The ground relied upon was based on alleged anti-social behaviour being conducted within and from the house, thus making it necessary that in the interest of good estate management he should leave the premises forthwith. This house was owned by the Council and was part of its housing stock. There is a letting history which I will come back to in a moment. Having obtained leave to issue judicial review proceedings so as to challenge that removal, the respondent unsuccessfully sought an injunction to retake possession of the house. Peart J., in a judgment delivered on the 22nd December, 2011, took the view that the relief prayed for, was in effect a form of a mandatory order and in the circumstances outlined in his decision, felt that such should not be granted. Rather, he decided that the substantive action should be determined with some haste.
2. That hearing took place on the 17th and 18th day of January, 2012, and judgment was delivered on the 2nd March, 2012. Whilst some aspects of the decision require close scrutiny, it is sufficient at this stage to note that the following orders resulted: -
"(1) An order of certiorari quashing the decision of the first named respondent made on or about 25th November, 2011, to invoke powers under s. 20 of the Housing (Miscellaneous Provisions) Act 1997; ["the 1997 Act"]
(2) A declaration that the decision to invoke powers under s. 20 [of the 1997 Act], was ultra vires in the circumstances in which it was made;
(3) A declaration that the first named defendant failed to duly consider the rights of the applicant to procedural fairness and due process in the manner in which it decided to invoke powers under s. 20 [of the 1997 Act], by denying him an opportunity to respond or make submissions in relation to alleged complaints of anti-social behaviour prior to directing his removal from the premises."
Further, costs followed the event and Mr. Kelly was granted liberty to apply regarding the question of damages.
3. Despite the extensiveness of the Notice of Appeal, the Council in its submissions suggests that there are some six issues for determination. These are as follows:-
(1) Whether the subject dwelling house was Mr. Kelly's "home", within the meaning of Article 8 of the European Convention of Human Rights - "contrary to the decision of this Honourable Court in the case of Dublin City Council v. Liam Gallagher delivered on 27th February, 2012";
(2) Whether the applicant has rights in the said premises notwithstanding that he has no lawful entitlement to be in occupation and was a trespasser/squatter therein;
(3) Whether the applicant had rights in the premises notwithstanding that the trial court did not find as a fact that Mr. Kelly was residing in the premises at the date of the death of his aunt, the registered tenant thereof;
(4) Whether he had rights in the premises notwithstanding that he was in breach of the respondent's rules and general administrative procedures for the letting of local authority housing;
(5) (i) Whether a local authority utilising the procedure provided for in s. 20 of the 1997 Act, is required to notify a squatter and afford him an opportunity to be heard in answer to allegations of anti-social behaviour;
(ii) Whether there has been a breach of fair procedures and/or constitutional justice, and finally;
(6) Whether the application for judicial review should properly have been brought against An Garda Síochana, rather than Dublin City Council.
4. As the dates indicate, the judgment of the High Court was given prior to the passing of the Thirty Third Amendment to the Constitution and the creation of the Court of Appeal: consequently, the constitutional provisions then in play apply to these proceedings. The appeal was therefore directly to this Court. Such an appeal is generally considered a "legacy appeal".
5. It is not immediately clear how precisely the trial judge arrived at the decision which he did, or the basis or analysis which led him to that point. Before considering this however, I should look a bit more closely to the factual background. This is easily stated, but how it should be dealt with for the purpose of this appeal, is much less so. As an issue arises as to what findings of facts were in fact made by the High Court, the most informative way of looking at the narrative is to firstly outline what the essential evidence was in respect of both parties, and then decide what findings were in fact made.
6. Mr. Kelly, who was born in 1982, says that virtually from birth he was reared by his grandmother, Juliet Kelly, and by his aunt, Rose Kelly, although she is 21 years older than him. In the documentation both Juliet and Rose are referred to by the respondent as being his mother and sister respectively. They all lived in a council house in Ballymun of which his grandmother was a tenant, until they moved to the subject dwelling in 2003, when he was aged 21 years. He claims to have lived in that house on a near continuous basis since then up to the events giving rise to this case, save for two brief periods starting in 2010. Although estranged from their mother, he has two children who also resided there when he had access to them. The first such period was from January to June of that year, when he was in prison, and the second was a period firstly when he went to live with his partner for two or three weeks at the end of January, 2011, and the second aspect of this was when thereafter he moved to the United Kingdom and lived with one of his sister's for a number of weeks. He then claims that whilst there he was informed that his aunt was seriously ill, and he returned to the subject premises.
7. At the funeral of his aunt who, having suffered from a serious illness for a long time, died on 9th November, 2011, he was given keys to the house by one of his brothers. He claims this was a symbolic gesture by the family leaving him the house for his own use. He also further believes that it was always the wish of his grandmother and his aunt that he, and he alone, would have the house. Whilst some uncertainty exists, according to the trial judge, as to whether he was in actual occupation on 9th November, he was certainly there when the gardaí called on 2nd December, 2011. In effect, he relies on this accommodation history, and in particular the level of occupation by him, as the basis for his right to succeed to the tenancy.
8. The records of the Council show an entirely different picture from that outlined, and one utterly inconsistent with the narrative as given. Their records do not indicate that he was ever a resident in the dwelling house, or that he was ever named or ever recognised as an occupant for the purposes of the rent book. In 2004, Mr. Kelly's aunt informed the Council that he was not residing in the dwelling house and that she had had no contact with him for several months: furthermore, some two days later on the 5th November, 2004, she gave an address at Mellowes Road, Finglas, at which he was residing. When Rose Kelly became sole tenant on the 21st March, 2006, he was not listed on the declaration which she had to sign. In addition, in May 2011, Mr. Kelly completed a Placement Assessment Form in which he provided a detailed account of his accommodation history: in that document, he declared various addresses for different periods between 2008 and May, 2011, none of which included the subject premises. Further, when again in May, 2011 he applied for social housing support he listed his then current address as being that of homeless accommodation on the North Circular Road. The previous five places of residence did not include the subject premises. Finally, there was evidence of an examination of the register book maintained by the Manager of that institution, for the period between September, 2011 and November of that year: during that time Mr. Kelly's signature appeared on the register on 31 occasions. All of this demonstrates, according to the Dublin City Council, that Mr. Kelly is not being truthful about the narrative of his accommodation history. Consequently, that being so, he must be regarded as a trespasser/squatter in relation to 17 Marewood Drive, when on 2nd December, 2011, he was removed, pursuant to s. 20 of the 1997 Act.
9. Mr. Kelly, in an affidavit sworn in response to the Council evidence, maintains the integrity of the history originally given by him. He goes on to offer various explanations as to why the documentation which the Council has, is as it is. Largely he claims that the addresses mentioned were given for social welfare purposes and that whilst his signature did appear on the register of the homeless accommodation on the number of occasions as given, nonetheless he denies having stayed there on all such occasions. Whilst he does not deny any of the information contained in the Council's files, he attempts to explain it away in various ways.
10. The true history of the tenancy of the subject premises is not in dispute. On the 11th August, 2003, Ms. Juliet Kelly and her daughter, Rose Kelly, became joint tenants of this property. When Juliet Kelly died, her daughter succeeded to this tenancy and became the sole tenant on the 21st day of March, 2006. Such Tenancy Agreements contain a declaration signed by the tenants that they are the only persons living in the house. Further, the rent is fixed taking account only of those living therein. Rose herself died on 9th November, 2011, with the removal of Mr. Kelly taking place some three/four weeks later.
Events between 11th November, 2001 and 2nd December, 2011:
11. Dublin City Council says that the partner of Juliet Kelly informed them that she had died, and produced a Death Certificate to that effect: this was the source of their information as to that fact. As a result, one of their employees went to the premises on 16th November, 2011, and finding no one in the house, left a card asking any occupant to contact him. Mr. Kelly made a phone call on 17th and was asked by a Mr. Brennan as to when he was handing back the keys as he had no right to be there. These events are not in issue, and appear to be uncontradicted. The evidence then discloses an email correspondence between employees of the Council on 25th November. This reads as follows:-
"Hi Paul,
I think you already know about this judging by the memo pad. Anyhow I got further notification from customer services this morning so I will pass it on to you…, phoned in with basically the same info as is in the memo pad. The nephew's name is Mark Kelly. Allegedly drug dealing ex premises and holding wild parties.
Regards"
The name of the person who called was redacted.
12. This mail was copied to Mr. Brennan. The only other evidence as exhibited, is that contained in a "Complaint Form" which was "date received" on 30th November, 2011. Mr. Kelly was identified as the subject matter of the complaint and as being an illegal occupier of the house in question. It was said that the events next described took place in the two week period prior to that date. The identity of the complainant is redacted. The text as recorded is as follows:-
"phone call from…to state that Mark Kelly who is the nephew of the tenant, Rose Kelly, has been residing at No. 17 since Rose passed away a few weeks ago…neighbours have told her that Mark and his partner have moved into this dwelling house and has also heard allegations that they are taking drugs there. Ask for this to be investigated by Dublin City Council."
These would appear to have been the source of the complaints relied upon by the Council, to invoke section 20 of the 1997 Act.
13. To my knowledge, the information on the pad has never been properly identified or outlined. What it seems to suggest however is that at least by that date, if not earlier, the Council had information similar to that contained in the email. There is then a record of a member of the public phoning in on the 30th November, as outlined above. This reference to wild parties and drug taking is taken by the Council as being anti-social behaviour. On 30th November they write to the Superintendent of Ballymun Garda Station, firstly seeking information about Mr. Kelly under s. 15 of the 1997 Act, and secondly, requesting the gardaí to invoke s. 20 of that Act. There then followed the events of the 2nd December.
2nd December, 2011:
14. In the presence of the gardaí, the Council attended at the premises on the morning of 2nd December, 2011. There was no one in the house at the time. The Council then proceeded to enter the house and to take appropriate steps to secure it. During the course of this operation, Mr. Kelly returned. Certain exchanges then took place with the respondent being informed of the legal authority upon which the actions underway were being taken. He was allowed to enter the dwelling house for the purposes of removing some of his personal items. After this had occurred, Council officials continued to secure the premises and when satisfied that such had taken place, departed the scene. These proceedings were then instituted.
Judgment of the High Court:
15. Peart J., in the dispositive section of the judgment, firstly considered the invocation of s. 20 of the 1997 Act, as if the subject premises was in fact the "home" of Mr. Kelly, even if as he puts it, there was no lawful basis to his occupation thereof. Even in such assumed circumstances, it was held that his removal was "undoubtedly an interference with a fundamental right, albeit not an absolute one". In such circumstances, s. 20 must be read as giving to any person the subject of its provisions a right to be heard in respect of any allegations of anti-social behaviour. Taking the view that the section could be considered for this purpose as analogous to s. 62 of the Housing Act 1966, under which, if used, Mr. Kelly would have such a right before any decision was made to serve a Notice to Quit, he went on to say that the question of proportionality would also have to be considered and that such issue could not be decided without "the person affected being afforded an opportunity to be heard".
16. The learned judge was of a similar view even if Mr. Kelly should be considered a trespasser, in which circumstances "there can be no doubt that as a matter of fair procedure and constitutional justice, the Council was obliged to at least put these allegations to the applicant in sufficient time before proceeding to evict him, so as to allow him to be heard in answer to them" (para. 41). As he was given no such opportunity, there was a breach of such procedures and a denial of such justice.
17. There are a number of other matters mentioned in the judgment which should be referred to. Firstly, there is a reference in para. 42 to the effect that the respondent to this appeal "might not reasonably be characterised as a ‘squatter' in the normal sense of that word. He may well have an entitlement to succeed to the tenancy". In light of the evidence given by the City Council, it is unclear on what basis either point could be made and in particular, the latter one. Secondly, there is no mention of Article 8 of the Convention, with the closest reference to the text of that provision being the last sentence in para. 43, where the judge speaks of a failure "to respect and have reasonable regard to the applicant's right to protection of his home and private/family life". In view of the limited issues decided by the learned judge, this clearly was not intended as an application of Article 8, but rather must be understood in a more non-specific way. Thirdly, in the context of making a reference to the information which the Council had, the learned judge stated that:-
"I cannot be satisfied on this application that they were sufficient to constitute irrefutable evidence that the applicant was involved in such behaviour." (para. 41)
This suggests to the City Council that before s. 20 of the 1997 Act can be used, there would have to exist "irrefutable evidence" that the person in question is or has engaged in anti-social behaviour. If this is the correct understanding of what was intended, they are seriously concerned that such could at least on occasions render the section inoperable.
Findings of Fact:
18. It is difficult to decipher what precise findings of facts were made by the learned judge. He says:-
(i) that it is not absolutely clear if Mr. Kelly was residing in the dwelling house on the 11th November, 2011, the date of Ms. Rose Kelly's death, but that he must have been there on the date of his removal, namely the 2nd December, 2012;
(ii) that arguably the Council made a decision to invoke s. 20 on the 25th November, 2011;
(iii) that no complaint of anti-social behaviour was made until the end of November, 2011;
(iv) that Mr. Clarke stated in an affidavit that the Council became aware of Ms. Rose Kelly's death only on the 22nd November, 2011, but that would appear to be inconsistent with what occurred on both the 16th and 17th of that month; and therefore, there is considerable room to doubt this assertion, and finally
(v) that there is much uncertainty whether any complaints were received prior to the 25th November, 2011;
It is not altogether clear therefore, whether any or all of these observations constitute a definitive finding.
19. However, what is beyond doubt is the fact that Peart J. did not make a finding that the premises was Mr. Kelly's "home" on any given date, or that his Article 8 rights were even engaged much less were directly violated. Furthermore, the learned judge by his judgment expressly stated that he was not in any way prejudicing the Council's decision on the applicant's right to succeed to the tenancy.
The Issue not Considered:
20. At para. 21 of his judgment, Peart J. makes it clear that the declaratory reliefs sought by Mr. Kelly in relation to the constitutionality of s. 20 of the 1997 Act, and its alleged incompatibility with the European Convention of Human Rights ("the Convention"), are issues which by agreement have been left stand and were not to be determined until the non-Constitution/Convention issues were dealt with. This approach is in substance reflected in the discussion/conclusion section of his decision, which appears in paras. 38 - 42 thereof. In particular, what might be the relevant Articles of the Constitution and what undoubtedly would be the relevant case law of the ECtHR are neither mentioned or discussed. Accordingly, it seems to me that it would be quite inappropriate for this Court to now deal for the first time with such issues. I therefore propose to consider what the trial judge did, namely whether the Council exceeded its powers in invoking s. 20 of the Act, and even if it was entitled to so do whether, having regard to the applicant's constitutional and Convention rights, they failed to observe fair procedures. He also did as I will, look at whether An Garda Síochana should be the only respondent, or at least a co-respondent, to these proceedings. These are the matters effectively outlined at subparas. (5), (6) and (7) of para. 3 above. Firstly, however, a brief reference to the submissions of the parties.
Submissions:
21. The Council says that before fair procedures apply, the affected person must identify some right which may be adversely impacted upon, by the decision which has either been taken or is pending. The only possible right at issue here is the right to the house, but none such exists. There cannot therefore be an interference with that right. Accordingly, he has no right to be heard. Cases such as State (Murphy) v. Kielt [1984] I.R. 458, Dellway Investments Limited v. NAMA [2011] 4 I.R. 1, and Callaghan v. An Bord Pleanala [2016] IECA 398 are some of the authorities relied upon to support this proposition.
22. Picking up on what the trial judge said at para. 42 of his judgment regarding the Council's entitlement to manage its estates of property, and to do so when required in a swift manner, so as to, inter alia , prevent trespassers taking illegal occupation of a premises, the appellants claim that s. 20 of the 1997 Act is drafted in such a way as permits precisely what Peart J. adverted to. Accordingly, if there was a requirement to hear somebody, like Mr. Kelly, such would constitute a major restriction on the purpose and intention of the section. Further, the Council says that it did consider the position of Mr. Kelly and concluded that No. 17 Marewood Drive was not his home and that he was not a tenant of the property at any time. In addition, and with specific reference to anti-social behaviour, they claim that they considered the complaints as received and were satisfied as to their existence and genuineness. Accordingly, their actions were fully within the parameters of that section.
23. It is also submitted by the Council that they acted lawfully, reasonably and rationally. They say that the decision taken by them did not fly in the face of reason, and that all of the requirements of s. 20 were in place before they activated the section. They support this argument by what Henchy J. said in the State (Keegan) v. Stardust Victims Compensation [1986] I.R. 642 at 658, and O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39 at 72.
24. The submissions made on behalf of Mr. Kelly, as one might imagine, were fully supportive of the decision of the learned trial judge. It was clear from the facts that the respondent had not been afforded fair procedures in that he was not even advised of the complaints in question and was not given any opportunity to respond. The forcible eviction from one's "family home" engages both natural and constitutional justice, and also Article 8 rights. In the context of the former, Re Haughey [1971] I.R. 217 is mentioned, as is the decision of O'Neill J. in Neville v. South Dublin County Council [2010] IEHC 67. On the Article 8 side, reference is made to McCann v. United Kingdom [2005] 40 EHRR 189 where the court emphasised that the loss of one's home is the most extreme form of interference with one's Article 8 rights and as such, attracts a guarantee of fair procedures. The judgment of that Court was fully consistent with the earlier case of Connors v. UK [2004] 40 EHRR 189, which however was more concerned with what would constitute an adequate independent method of safeguarding procedural fairness in such context. They also refer to A.O & D.L v. Minister for Justice [2003] 1 I.R. 1.
25. The court is then referred to s. 17 of the Housing (Miscellaneous Provisions) Act 2014, which introduces a provision dealing with who might succeed to a tenancy where the named individual has died. It is pointed out that in order to recover possession, the housing authority must apply to the District Court which under subs (7) shall make a possession order only if, inter alia , it is reasonable having regard to all of the circumstances of the case to do so. This provision, it is said, reflects the requirement that whatever steps a housing authority takes subsequent to the death of a tenant, the consequences thereof must be proportionate for those affected thereby. This therefore it is submitted, is the current legislative view of what is required to meet procedural safeguards.
Discussion/Decision:
26. The provision of social or public housing is crucial to a society such as ours. A great number of people, from individual persons through a range of diverse and distinct unit groups, depend on such a service. Housing does not provide simply a place of shelter or a place of rest and peace, although it does both. It provides a place where human interaction takes place and where it develops at the most intimate level. For those who are not in need, it can be personally funded. When so, whatever the nature of the precise ownership might be, such persons have an ability to preserve their security and repel unwelcome strangers. In effect they have the means to achieve this end.
27. With publicly funded housing, matters are different. Firstly, the acquisition cost is state funded: secondly, the level of such funding competes with the multiple other state services, which depending on view, equally deserve recognition. Thirdly, as history shows, there will rarely if ever be sufficient availability to cater for those who satisfy the qualifying criteria, and fourthly, subject to the terms of any tenancy arrangement, the public provider remains largely responsible for the overall structure.
28. To this end, the State through legislation, has established various housing authorities throughout the country to implement this social policy: such authorities largely correspond with the structure of local government. Whilst state intervention has existed for a very considerable time, as the repeal of more than 60 statutes and Acts show, the first and probably most significant piece of legislation in the modern era, was the Housing Act 1966. The situation has moved very considerably since then, with that Act being amended on numerous occasions, mostly to reflect needs, the changing face of society and to deal with future anticipation. The housing authority in each administrative area therefore plays a crucial role in this regard. It is obliged to make housing provision for diverse categories of persons in need of such accommodation and who cannot provide it by themselves. This grouping will include such as the homeless and the traveller community, as well as those with special needs such as the elderly and those physically impaired. In addition, it provides financial support and assistance in a variety of ways. To such ends they must establish and maintain a housing stock and where present or future necessity requires, improve, increase and update that stock. They have been vested with powers, either mandatory or discretionary, to supplement this core function.
29. The authority, subject to any tenant/purchaser agreement or the like, is the owner of the dwelling house so provided and retains the responsibility therefor. They act as the recipient of applications for social housing, as the body who decides on how the available stock should be allocated and as the body who operates the administration of the stock so provided. Their role is hugely expansive and highly important. In some respects, one could consider them as a public landlord in this context, but one fully circumscribed by statute and by secondary rules and regulations laid down. The overall system is one based on the common good and public interest.
30. As is obvious, but in particular when the supply is less than the demand, some system of allocation must exist: it must be fair and must command widespread respect. The public, and in particular those on the waiting list, must have confidence in the structure of such a system and how it operates. Under the terms of a typical scheme, which is subject to periodic review, the housing needs of all those within its functional area must be assessed, classified and thereafter prioritised in accordance with the terms of that scheme. Having conducted this exercise, the available housing stock is allocated accordingly. A scheme such as that described is generally known as a "Scheme of Letting Priorities" or a "Housing Allocation Scheme".
31. Another important feature of such a scheme will be the provisions dealing with the terms and conditions by which a person or persons can succeed to a tenancy, where the tenant has died or vacated. In general, there is a residency requirement for a particular period and also a requirement that the intended applicant for that period, whatever it might be, has been included on what is colloquially referred to as "the rent book". In this particular case, section 1.7 of the scheme then applying, provides a residency period of two years immediately prior to the death of the tenant, in the case of a son or daughter, and in the case of a more distant relative a period of five years. The requirement of having to be noted on the rent book is for the same period and is because the actual rent payable in respect of such a dwelling house is differentially calculated, and is directly related to the income of those residing therein. It is thus of considerable importance that such a requirement be adhered to.
32. That a housing authority is entitled to have such a scheme is not in doubt: equally so its importance to the good administration of their stock cannot be questioned. In this context it is worth mentioning what I stated in the case of Donegan v. Dublin City Council and Dublin City Council v. Gallagher , a judgment delivered on 27th February, 2012. At para. 155, I said:-
"There can be no doubt but that the Council are entitled to have such requirements, as conditions of succession. They are justified in so doing so that individuals will not obtain accommodation free of contribution to the detriment of others, who are both willing and obliged to pay. Moreover, an obvious effect of acting in breach of this requirement is that the rent actually paid by Mr. Gallagher's mother has been less than what it should have been. Therefore, there can be no doubt but that such a requirement is a legitimate part of the Council's estate management regime so as to efficiently and effectively discharge their public duties."
I reaffirm my commitment to what is stated.
33. In supporting the due and proper performance by a housing authority of its duties and functions, the Oireachtas has provided a number of ways in which it can both reclaim and retain possession of its stock. The necessity to do so may arise for several reasons and in different circumstances, including where the terms and conditions of a tenancy have been breached, where overholding takes place, where those in occupation have no right or entitlement to the enjoyment of the property and where such occupants are properly classified as trespassers or squatters. In any such case, if legal proceedings are required, recourse was normally had to s. 62 of the Housing Act 1966, as amended by s. 13 of the Housing Act 1970 ("s. 62 of the 1966 Act"). This is a section I will come back to in a moment. In addition, as in this case, the Oireachtas has also empowered a housing authority to invoke s. 20 of the 1997 Act, in the circumstances which that provision cover. Whilst there are also other mechanisms available, the two mentioned are those which have featured heavily in this case.
34. Section 62 of the 1966 Act reads as follows:-
"62 - (1) In case, Whether by reason of the termination of a tenancy or otherwise, and The authority…(without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the District Court district in which the dwelling or building is situate for the issue of a warrant under this section.
(2) Where -
(a) The rent of any dwelling let by a housing authority under this Act…either on a month tenancy or on a tenancy for a less period than a month, is in arrears for a period of not less than one month, and
(b) The dwelling is, in the opinion of the authorities…abandoned by the person to whom it was so let, and
(c) The dwelling is not actually occupied by any person,
The authority…may give to the person to whom the dwelling was so let notice, being not less duration than that which would be required to terminate the tenancy by notice to quit, of their intention to resume possession of the dwelling and in case notice is duly given under this subsection and if, but only if, at the expiration of the notice the said rent in arrears is unpaid, the authority…may resume possession of the dwelling and thereupon the tenancy therein shall by virtue of this subsection terminate.
(3) Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issued a warrant.
(4) …
(5) …
(6) …"
Historically it has always been felt and consistently held by the courts that once the formal proofs demanded by subs (1) have been satisfied, then an order for possession will follow, with the District judge having no discretion in that regard.
35. This section has been addressed on several occasions over the past thirty years or so. In State (O'Rourke) v. Kelly [1983] IR 58, it was held by this Court in rejecting a constitutional challenge: that "its provisions did not constitute an unlawful interference in the judicial domain". A different argument was advanced in Dublin Corporation v. Hamilton [1999] 2 IR 486, where it was said that the word "duly" in subs (3) carried with it both substantive and procedural rights for the person from whom possession was sought. It was therefore suggested that the role of the District Court judge in hearing an application under the section, was much more expansive than what was heretofore acknowledged. In rejecting these arguments Geoghegan J. stated "…it would seem to me to be both reasonable and constitutional that there be available to a housing authority a rapid method of recovering possession of any one dwelling provided by it without having to give reasons for so doing. The local authority has to consider its overall management of housing and it owes an obligation to all the persons in need of housing as well as to any one individual…I would also agree that a housing authority…must not abuse its powers or discretion but if it does so it would be subject to the remedy of judicial review. It is not a matter for the District judge to consider in a hearing under s. 62 of the Act of 1966". Accordingly, despite acknowledging that judicial review proceedings may be cumbersome, nonetheless that was no reason "for importing into s. 62 requirements which were never intended to be there". (See Byrne v. Judge James Scally (High Court, 12th October, 2000)). These cases were cited with approval by this Court in Dublin City Council v. Fennell [2005] I.R. 604.
36. Despite this consistent line of authority however, the sense of unease as to how the section operated continued to grow. The concerns centred on the interpretation given to s. 62(3) as referred to at para. 34 above, once the District Court was satisfied the formal requirements of subs (1) had been satisfied, then he or she had no choice but to grant the order sought. In particular, he or she had no role or function in adjudicating upon a factual dispute if such should exist.
37. Based on a series of decisions from the European Court of Human Rights, including Larkos v. Cyprus [1999] 30 EHRR 597, and Connors v. UK [2004] 40 EHRR 189, and also having regard to several decisions from the Courts of England and Wales which to a greater or lesser extent applied the jurisprudence of the Strasbourg Court, a number of further challenges were mounted against this section in the period of 2005 onwards. These included Leonard v. Dublin City Council & Ors [2008] IEHC 79, and Donegan v. Dublin City Council, Ireland and the Attorney General [2008] IEHC 288, and Dublin City Council v. Gallagher [2008] IEHC 354. Essentially the argument asserted in each case was that, if s. 62 of the 1966 Act had to be interpreted as historically applied, then the Article 6 and Article 8 rights of each applicant had been violated.
38. In Leonard , Dunne J., then of the High Court, rejected the application so made. In Donegan, Laffoy J. distinguished Leonard from the facts of the case before her, indicating that in the former there was no factual dispute which required resolution. Having considered the submissions, the learned judge came to the conclusion that s. 62 of the 1966 Act could not be read in a manner compatible with the Convention as required by s. 2 of the European Convention on Human Rights Act 2003 ("the Act of 2003"). Therefore, a declaration of incompatibility under s. 5 of that Act issued. In Gallagher , O'Neill J. made a similar declaration. Both judges came to that conclusion as the procedural rights found in Article 8 of the Convention could not be safeguarded in s. 62 proceedings.
39. On 27th February, 2012, I delivered a joint judgment on both appeals ( Anthony Donegan v. Dublin City Council & Ireland and the Attorney General : Dublin City Council v. Liam Gallagher and the Attorney General [2012] IESC 18). Based on the facts, a distinction was drawn between the situation of Mr. Donegan and that of Mr. Gallagher. In the case of the former, there was a factual dispute concerning the basis upon which the Council decided to terminate his tenancy. As there was no method within the provisions of s. 62 of the 1966 Act, by which that conflict could be addressed, his convention and constitutional rights were breached. The appeal therefore was rejected, and a declaration of incompatibility in relation to s. 62(3), pursuant to s. 5 of the Act of 2003 was made.
40. The situation with regard to Mr. Gallagher was however different. The underlying issue concerned whether or not he could establish compliance with both the residency requirement of the Scheme of Letting Priorities then applying, and also the requirement of having to be listed in the rent book, both for the necessary period. Undoubtedly there was a dispute with regard to the former, but it was accepted by all parties that his name was not on the rent book for the requisite period. Accordingly, since that of itself would disentitle him to succeed to the tenancy, it was not necessary to have the residency obligation further explored. The appeal therefore from the decision of the High Court was allowed. Incidentally, his proceedings came to this Court via a case stated where the questions raised and the answers given, are set out at paras. 26 and 157 respectively of the judgment. Therein, the historical understanding of how s. 62 operated, was affirmed.
The Situation Now:
41. By virtue of the Housing (Miscellaneous Provisions) Act 2014, the process by which and the grounds upon which a housing authority may seek possession of a dwelling house have been entirely changed. Section 12 sets out that a housing authority may seek a "possession order" from the District Court where there has been a breach of a tenancy agreement, or a rent related obligation. Section 13 applies where there is no tenancy other than in circumstances where s. 17 applies: in the latter section provision is made for the recovery of possession on the death of a tenant. In each situation the District Court, shall only make that order if, inter alia , "it is reasonable (to so do) having regard to all the circumstances of the case". Accordingly, the situation has been significantly altered and in its current form, certainly responds to the concerns expressed in the judgments above mentioned.
The Use of Section 20 of the 1997 Act:
42. The other measure supporting a housing authority, and that used in this case, is, as stated, s. 20 of the 1997 Act, which reads as follows:-
43. There are two important definitions which are central to that section. In s. 1 of the 1997 Act, anti-social behaviour is defined as including, unless the context otherwise requires:-
"…either or both of the following, namely - (a) The manufacture, production, preparation, importation, exportation, sale, supply, possession for the purposes of sale or supply, or distribution of a controlled drug…
(b) Any behaviour which causes or is likely to cause any significant or persistent danger, injury, damage, loss or fear to any person living, working or otherwise lawfully in or in the vicinity of a house provided by a housing authority under the Housing Acts 1966 - 1997 or a housing estate in which the house is situated and, without prejudice to the foregoing, includes violence, threats, intimidation, coercion, harassment or serious obstruction of any person."
44. The phrase "estate management" is defined also in s. 1 of the Act as including:-
This and the definition of anti-social behaviour as given are in the version applicable at the relevant time.
45. Before specifically addressing the facts of this case, there are a number of issues which should be dealt with. The first is the suggestion that s. 20 of the 1997 Act should be identified with s. 62 of the Housing Act 1966, for the purposes of applying fair procedures. I would reject this suggestion as in my view there are some significant differences between both, and not simply because of the express reference to anti-social behaviour in section 20. Firstly, an order under s. 62(3) is one for the recovery of possession of the dwelling house in question. Secondly, such an order is the equivalent of a judicial declaration that the subject person has no tenancy rights in the property, thereafter, and thirdly, its terms were capable of applying to persons, who before the service of a Notice to Quit, were tenants and who perhaps had also been in occupation for several years. The situation with s. 20 of the 1997 Act is quite different.
46. In the first instance, a direction under that provision does not terminate any tenancy in the premises, nor does it otherwise have any direct legal effect on the contractual relationship between the housing authority and the subject person, if such should exist. In addition, it does not of course deliver possession of the property to the housing authority. What it does require is that the person in question should vacate the property. That situation may not necessarily be permanent unlike a s. 62 order which, subject to an appeal or a judicial review, would be. It is at least arguable that if and when the anti-social behaviour complained of should cease, that ground of exclusion, could not thereafter validly support a continuing denial of occupation. There may well be other grounds which would have the same effect, but anti-social behaviour would not be one of them.
47. The second matter relates to the category of persons who are captured by the section: or more accurately those persons who are excluded from its operation. It is clear from the wording of s. 20(1)(a) of the 1997 Act that its provisions do not apply to a tenant, which presumably must be a reference to an existing tenant. There is good reason for this. Such a person has a subsisting and valid interest in the property which can only be terminated by due process. Further, it is highly likely that if such conduct could be established, the person in question would be in breach of some one or more of the terms and conditions of the letting, thus permitting the housing authority, if it so wished, to terminate the tenancy and seek possession. What is not that evident however, is the meaning to be attached to the phrase which appears immediately following the word tenant, namely "or a person who has failed to vacate a house on termination of a tenancy".
48. On one reading it might be said that it is intended to refer to persons who have continued in occupation after the termination of a tenancy, typically such persons are said to be overholding. I include family members in this regard. In such a situation as with an existing tenant, there are other means of redress at the disposal of a housing authority. On the other hand, the wording of it, certainly on a literal interpretation, might give the impression that the section can be applied to any person in occupation once a tenancy, in the sense of "any tenancy" has terminated. I certainly would not be happy to accept an interpretation that it applies only to those who would be legally characterised as "squatters". If the legislature so intended, some much narrower form of wording would have sufficed for that purpose. Whichever, I cannot accept that the section has no application to a person who does not and never had a legal right or entitlement to be in occupation. In any event, I do not consider it necessary to be definitive on the point as the judgment of the learned trial judge was not based on any such finding in this respect.
49. In considering the third matter, it should be noted that the scheme of the Act is relatively straightforward. Either with the aid of information supplied by An Garda Síochana under s. 15 of the 1997 Act, or otherwise, once the "authority believe" that anti-social behaviour is or has existed, and that in the interests of estate management it is necessary for such person to vacate the property, then they may notify An Garda Síochana of these facts. Based thereon, An Garda Síochana then has power to issue the direction under the section.
50. In para. 41 of the judgment, Peart J., in assessing what information the housing authority had before invoking s. 20, said that he could not be satisfied "that there were sufficient to constitute irrefutable evidence…that Mr. Kelly was engaged in the behaviour as alleged". If this phrase should be read and applied literally it would have the effect, accordingly to the City Council, of effectively making the section redundant. In the context of anti-social behaviour where complaints are frequently made by neighbours or at least by those who know the alleged offender and vice versa , it would be virtually impossible for a housing authority to be satisfied to this level of certainty.
51. I do not believe that this isolated phrase could possibly have been intended to have the meaning as suggested. The precise wording of the provision is relatively clear. It says that where "the housing authority believe…". Therefore, the requirement on it is pitched to this point. It is not at the level of probability or of near certainty. If that was the intention words such as "cogent", "compelling" or "convincing" would have been used. Or perhaps a phrase such as "substantial reason" to believe or similar, but the wording is as is. That said however, in searching for its meaning, the context must be noted. When available for use, a direction given under the section is a serious matter. It has the effect of removing a person from the house "immediately": failure to comply exposes one to a criminal charge and on conviction, to a fine of €1,500 or to 12 months imprisonment. Consequently, it is a power of some significance. That being so, it appears to me that the belief of a housing authority must be backed up by evidence which to their satisfaction is reliable and genuine. It should be verified in so far as that is possible. The process by which this can be done is a matter for them. What is required is that the underlying belief is reasonably based and well founded in the circumstances.
52. Despite the observations of the learned trial judge, last mentioned, I do not see that an issue as such arose, as to whether the Council was justified in notifying the gardaí with the information which they had, so that the section might be activated. This type of issue was clearly in play in Neville v. South Dublin County Council [2010] IEHC 67, where s. 20 of the 1997 Act was sought to be invoked, again on the basis of anti-social behaviour. The evidence however demonstrated quite categorically that the only offending conduct of Mr. Neville was the discharge of an illegally held firearm, a number of years previously. In the view of O'Neill J., such could not be classified as anti-social behaviour within the meaning of the statutory definition: accordingly, the operation of the section lacked a crucial fundamental basis: the actions of the Council were therefore ultra vires the Act.
53. In this case it is clear that the City Council had some knowledge of what it considered to be anti-social behaviour on or prior to the 25th November, 2011, which information was added to when the complaint was received on the 30th November, 2011 (paras. 11 and 13 supra ). Whilst I disagree with the learned judge that the operative date for the purposes of the section was the 25th of November, instead believing that the communication to An Garda Síochana on the 30th was the effective event, nothing much turns on this as the case was not determined on that basis. Certainly that was not the ground upon which the learned trial judge came to the conclusion which he did. Accordingly, it is not necessary for this Court to express any concluded view on it.
54. The real issue in the appeal is of course the conclusion reached by the trial judge that the manner in which s. 20 of the 1997 Act was invoked and operated, was inconsistent with fair procedures and constitutional justice, in particular in that Mr. Kelly was not informed of the complaints resting against him and was not afforded any opportunity of responding. The case as originally made by the respondent was no wider than those two aspects of fairness, which I have just mentioned. The complaint was narrowly focused in a manner which I have described. It was determined by the High Court in that way. Accordingly, wider issues which might be said to arise are not addressed in this judgment. The decision will be confined to the allegations as made and as determined by the learned judge.
55. In particular I should mention the decision of In Re Haughey [1971] I.R. 217. In that case, which involved circumstances so well known that it is not necessary to repeat them, this Court, based on the guarantee of fair procedures which it sourced in Article 40.3 of the Constitution, set out what it identified as four minimum protections which should be afforded to a person whose good name and reputation is under attack. These were that the subject person should be given a copy of the evidence against him, that he should have a right with legal representation if he so wished to cross examine his accusers, that he has an entitlement to give evidence and made submissions. These rights have become known as the " In Re Haughey Rights ". It must be emphasised however, that the enumeration of such rights was in the context of an inquiry in which witnesses enjoyed statutory immunity. As an abundance of cases subsequently decided will show, the extent to which such rights or any one or more of them will become applicable, is dependent on the specific circumstances and context of each case. In any event, it has not been argued on behalf of Mr. Kelly in this appeal, that when invoking s. 20 he was entitled to all such rights.
56. It is somewhat unsatisfactory to have to decide this issue within the factual matrix as presented to this Court. As previously outlined, it is not altogether clear what findings of fact were arrived at in the High Court. I am attaching no blame to the learned trial judge in this regard, as despite the conflicting positions outlined in the affidavits, neither party sought to cross examine the other. The situation however arrived at was that Peart J. made no finding that Mr. Kelly had ever been in occupation of the premises prior to his aunt's death, and further held that he could not be satisfied as to his occupation even as to that date, i.e . 9th November, 2011. Whilst the evidence is recited at length, it remains in that state. Equally so with regard to the question as to whether 17 Marewood Drive was the respondent's "home" for the purposes of Article 8, though this is explainable by the narrow way in which the judicial review proceedings were determined. In fact, that particular issue was specifically left open (para. 19 above). All we know therefore, is that on the morning of 2nd December, 2011, the respondent appeared to be in occupation of the house.
57. The reason why findings of fact on some crucial issues would have been important, is that the outcome may have had a direct bearing on what right to fair procedures may be said to exist and secondly, if engaged, the nature and scope of such right.
58. In this context what emerges from the non-disputed evidence is of more significance: this is highlighted at para. 38 of the judgment under appeal. Therein Peart J. found that Mr. Kelly's involvement with state agencies "was less than truthful and satisfactory" and that "without putting a tooth in it, he has deceived these bodies and has been untruthful for his own ends…he certainly has displayed a capacity to deceive and manipulate the system for his own ends". This view of the evidence is entirely justified and is one with which I fully agree.
59. However, I take a much stronger view of the consequences of this deception than the trial judge did, which was ongoing for several years, and clearly well premeditated. Such behaviour evidently was not transient or isolated and could not be explained by a lack of education, social depravation or cognitive impairment. It is one thing for a person who is hopelessly disadvantaged to misstate, even deliberately, an event, date or happening in the past. It is an entirely different matter to conceive of and continue with such duplicity, deliberately intended to mislead the agencies. If such became common place, without effect for the person involved, the only restraint on everybody else doing the same would be self respect. Thankfully the vast majority of people have this sense of integrity. It would be quite offensive to such persons however, if behaviour like that of Mr. Kelly should simply be noted, but otherwise have no consequences.
60. It therefore seems to me that in view of where the evidence rested, there was a heavy onus on the respondent to establish to the level of probability that his connection with the dwelling house in question was, such as would permit a finding that the same constituted "his home" for the purposes of Article 8 of the Convention. I am not at all satisfied that he discharged this obligation. Therefore, I would not be prepared to hold that Article 8 rights are engaged.
61. However, this is not an end of the matter. The use of s. 20 of the 1997 Act undoubtedly brings this case within the province of public law as distinct from other disputes between landlord and tenant, which are purely on the private side. Hunt v. Dublin City Council, Supreme Court, 13th May, 2004, is an example of the latter. That being the situation and involving as it does the operation of statutory provision, the statement of Walsh J. in East Donegal Co-operative Livestock Mart Ltd [1970] I.R. 317, comes to mind. In the relevant passages the learned judge stated that:-
"It is to be presumed that the Oireachtas intended that any proceedings, procedures, discretions or adjudications permitted, provided for or prescribed by any enactment, would be conducted in accordance with the principles of constitutional justice and any departure from those principles, would be restrained or corrected by the courts."
That therefore is one strand of authority where fair procedures can be found.
62. Another and perhaps more direct source is Article 40.3.1 of the Constitution itself which contains within it a guarantee of fair procedures. That this requirement of procedural fairness exists, has never been doubted since the seminal decision of In Re Haughey [1971] I.R. 217, above mentioned. It is clear, as I have previously said, that fairness of process is case and circumstance specific. What will be a sufficient compliance in one circumstance, will not be in another. In Flanagan v. University College Dublin [1988] 1 I.R. 724, Baron J. held:-
"…procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case…matters to be considered are the form in which the complaint should be made, the time to be allowed to the person concerned to prepare a defence, and the nature of hearing at which that defence may be presented. In addition, depending upon the gravity of the matter the person concerned may be entitled to be represented and may be entitled to be informed of their rights. Clearly matters of a criminal nature must be treated more seriously than matters of a civil nature, but ultimately the criteria must be the consequences for the person concerned of an adverse verdict."
63. In the context of the operation of s. 20 of the 1997 Act, O'Neill J. in Neville v. South Dublin County Council [2010] IEHC 67, said:-
"Had the respondent a valid case to make under s. 20 of the Act of 1997, it would of course have been necessary for them to have given the applicant an opportunity to be heard, first to challenge that case and secondly, to have the proportionality of the decision considered. Clearly they did not afford the applicant any opportunity to be heard in this regard before deciding to exercise the powers to evict him given s. 20 of the 1997 Act, this failure would have resulted in a breach of Article 8 if the applicant's rights under that Article had been engaged."
It is clear beyond dispute therefore that certain rights similar to those in Article 8 of the Convention, and in Article 40.3.1 of the Constitution, apply to the operation of s. 20 of the 1997 Act.
64. It is important at this juncture to differentiate between Mr. Kelly's application to succeed to the tenancy and the use of section 20 of the 1997 Act. As it happened, even though he was informed by Mr. Brennan on 17th November, 2011, that he had no entitlement to be in the house and that he should hand his keys back, no application to succeed to the tenancy had been received by the 2nd December, 2011. That eventually was made on 12th December, and we are informed, has been unsuccessful. Some suggestion has been made that a person like Mr. Kelly would have a right to either occupy or remain in this house until such an application had been made or determined. I would not accept such a suggestion in the circumstances of this case. However, that is not the issue: the instant case is about succeeding to a tenancy. It is about the existence of anti-social behaviour as being the specified ground upon which s. 20 was invoked.
65. By any standard of measurement for a person to be evicted for anti-social behaviour, upon an allegation which included a reference to drugs, must be a serious thing. If in no other way, it may very well have a significant impact on any future application he might make to the Council for housing accommodation. Of course it could possibly have wider implications than that, but for certainty the one identified would be a real one.
66. The events leading up to the direction given on the 2nd December, 2011, are set out and well ventilated above. Based on whatever information was available, the City Council requested the gardaí, by notification dated 30th November, 2011, to utilise s. 20 of the 1997 Act. This they did on 2nd December, 2011. What is clear is that at no point prior in time to the premises being forcibly entered and secured was Mr. Kelly ever informed that he was even under suspicion of having engaged in anti-social behaviour. Given the consequences of such direction, and of course the criminal sanction which would follow if not complied with, fairness would dictate that some engagement at some level was necessary. That did not take place. To that extent I would uphold the findings of the learned trial judge, and would dismiss the appeal.
67. As case law shows, the nature of any such engagement will vary according to the circumstances. These may involve a situation where it is neither reasonably possible or feasible to have any interaction with the individual or individuals involved and secondly perhaps, a situation where the need for urgent action on behalf of the Housing Authority to immediately secure their property is demanded by circumstances at hand. In this case, Mr. Kelly had no right to occupy the property and according to the Council's records he never had any connection with it. That being so, I would be satisfied that quite an informal process would have been sufficient to respect his rights. That however would have to involve the Council informing him of the basic information which they had, and giving him an opportunity of responding. Having done so, a decision could then have been arrived at whether or not there was a sufficient basis to invoke section 20. In the circumstances nothing more elaborate than what I have outlined, would have been required. That however did not take place.
An Garda Síochana:
68. Earlier in this judgment I briefly referred to how, and in what way, s. 20 of the 1997 Act operates. As can be seen, it is triggered by a housing authority, but implemented by An Garda Síochana. No point turns on their individual functions or on what discretion the gardaí might have, even having received such a notification. However, without such a notification there would not be any basis upon which the section could be utilised. That is therefore at least one crucial decision in the process. It may well be said that the direction also fell into this category, and further that in other circumstances, An Garda Síochana might be a respondent or a co-respondent as the case may be. However, I am perfectly satisfied that the local authority is correctly named in these proceedings for the relief sought against it. I would therefore uphold the trial judge in this regard.
69. Accordingly, I would dismiss the appeal on the basis above stated.
