O'Donnell v South Dublin County Council

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date13 March 2015
Neutral Citation[2015] IESC 28
CourtSupreme Court
Docket Number[Appeal No: 115/08]
Date13 March 2015
Between
Mary O'Donnell, Patrick O'Donnell, Michael O'Donnell (A Minor Suing by his Mother and Next Friend Mary O'Donnell), Ellen O'Donnell (A Minor Suing by her Mother and Next Friend Mary O'Donnell), Mary O'Donnell (Suing by her Mother and Next Friend Mary O'Donnell), Margaret O'Donnell (A Minor Suing by her Mother and Next Friend Mary O'Donnell), Theresa O'Donnell (A Minor Suing by her Mother and Next Friend Mary O'Donnell), Gerry O'Donnell (Suing by his Mother and Next Friend Mary O'Donnell)
Applicants/Respondents
and
South Dublin County Council, Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General
Respondents/Appellants

[2015] IESC 28

Hardiman J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

[Appeal No: 115/08]

THE SUPREME COURT

Housing – Travelling community – Social protection – Applicants seeking an order of mandamus giving effect to the respondent”s duty to provide them with adequate accommodation – Whether applicants entitled to damages by reason of the respondent”s breach of statutory duty

Facts: The applicants, the O”Donnell family, are members of the travelling community. Mrs Mary O”Donnell, the first applicant, is a full-time carer for her seven children. Mr Patrick O”Donnell, her husband, the second applicant, is unemployed, and in receipt of disability allowance. The applicants were living in a two-bedroom adapted caravan/mobile home which the South Dublin County Council, the first respondent, had provided to the family. The O”Donnells maintained that they were living in an overcrowded situation, and had a right to have their situation remedied. The County Council submitted that, in accordance with statute and the established case law, its legal duty was simply to provide the applicants with a halting site. The Council contended that it had gone much further than its legal duty by providing two caravans for the family. It said that when it provided those two mobile homes, in the year 2003, it had complied with all its statutory duties. In February, 2008 the High Court granted a declaration that the County Council, had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of the fourth applicant, Ellen O”Donnell, under Article 8 of the ECHR, and s.3 of the ECHR Act 2003. Both the applicants and respondents appealed that judgment to the Supreme Court. The applicants contended that the judge erred in failing to hold that the duty to provide that the term ‘dwelling’ under s.56 of the Housing Act 1966, extended to the provision of what is termed a ‘temporary dwelling’ as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act 1992. The applicants alternatively submitted that the trial judge erred in failing to hold that the County Council had a statutory duty to provide the entire O”Donnell family with adequate and suitable caravan accommodation, and submitted that an order of mandamus should be made to give effect to that duty. The County Council contended that the claim, in its entirety, should have been dismissed in the High Court.

Held by MacMenamin J that to interpret the term ‘dwelling’ in s.56 of the 1966 Act so as to include caravans or mobile homes, would be to impermissibly legislate; it would radically alter the nature of the duty, in a way not consistent with any ECtHR jurisprudence. MacMenamin J held that as both Mr and Mrs O”Donnell were repeatedly offered housing, it was not possible to conclude that the County Council failed in its statutory duty to them; the extent and range of the offers was sufficient to negative any finding in their favour. MacMenamin J held that the Council cannot be fixed with notice of sufficient information as to the other children”s position, which would have placed them under a duty. MacMenamin J noted that Ellen”s situation was exceptional given her cerebral palsy and sufficient as to impose a special duty upon the County Council towards her, citing Bank of Ireland v Purcell [1989] IR 327. MacMenamin J held that, therefore, the evidence did not show that the County Council performed its statutory duty, towards Ellen, ‘insofar as it was practicable’ as the Constitution provides. MacMenamin J held that, in the case of Mr and Mrs O”Donnell, it was impossible to identify any right which was not forgone by their own actions in disposing of a usable caravan, and in refusing the range of housing solutions offered to them and their family; that was sufficient in law to discharge the County Council”s statutory duties.

MacMenamin J held that he would vary the order of the High Court judge insofar as it concerned the fourth applicant only. She was held to be entitled to damages by reason of the County Council”s breach of statutory duty toward her. Her claim was remitted for plenary hearing back to the High Court. MacMenamin J held that the claim for damages for breach of statutory duty was of a quasi tortious nature, therefore the Civil Liability Act 1961 applied.

Appeal dismissed.

JUDGMENT of Mr. Justice John MacMenamin dated the 13th day of March, 2015
1

As citizens of Ireland, members of the travelling community are entitled to equivalent levels of social protection as the settled community. One recurrent issue in the case law is the extent to which the level of social protection can be adjusted in order to respond to particular accommodation requirements. The need to address such requirements becomes more acute if families are living in substandard or overcrowded accommodation.

2

At the time of the proceedings, the fourth named applicant was living in very overcrowded accommodation. On 5th February, 2008 Edwards J., in the High Court, granted a declaration that the first named respondent, South Dublin County Council, had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of the fourth named applicant, Ellen O'Donnell, under Article 8 of the European Convention on Human Rights (‘the Convention’), and s.3 of the European Convention on Human Rights Act, 2003 (‘the ECHR Act, 2003’). He dismissed claims brought by the applicants in the High Court.

3

Both the applicants and respondents have appealed that judgment. For ease of reference, the O'Donnell family, when appropriate, will be referred to collectively as ‘the applicants’. They contend that the judge erred in failing to hold that the duty to provide that the term ‘dwelling’ under s.56 of the Housing Act, 1966, extended to the provision of what is termed a ‘temporary dwelling’ as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992. The applicants alternatively submit that the trial judge erred in failing to hold that the first named respondent, (‘the County Council’ or ‘the Council’), had a statutory duty to provide the entire O'Donnell family with adequate and suitable caravan accommodation, and submit that an order of mandamus should be made to give effect to that duty.

4

The County Council, in its cross appeal, contends that the claim, in its entirety, should have been dismissed in the High Court, and that no member of the O'Donnell family is entitled to relief.

Background
5

The O'Donnell family consisted of two adults and seven children. Mrs. Mary O'Donnell, the first named applicant, is a full-time carer for her seven children. Mr. Patrick O'Donnell, her husband, the second named applicant, is unemployed, and in receipt of disability allowance. At the time leave to seek judicial review was granted in the High Court (13th November, 2006), the applicants, who are members of the travelling community, were living in a two-bedroom adapted caravan/mobile home which the County Council had provided to the family.

6

By the time this appeal came on, a number of the older children, namely, Mary junior, Patrick junior and Michael, had moved out of the mobile home. Nonetheless, the issues which the O'Donnells seek to canvass remain live ones. They maintain that they are still living in an overcrowded situation, and have a right to have their situation remedied. The County Council submits that, in accordance with statute and the established case law, its legal duty was simply to provide the applicants with a halting site. The Council contends that, in fact, it had gone much further than its legal duty by providing two caravans (or mobile homes) for the family. It says that when it provided those two mobile homes, in the year 2003, it had complied with all its statutory duties.

7

Ellen O'Donnell is the fourth-named applicant. She is a citizen of Ireland. At the time of the High Court hearing, she was aged 15 years, and as a result of cerebral palsy, was constrained to use a wheelchair. She was educationally disadvantaged. Some measure of her situation can be gleaned from the fact that she did not have access to a toilet until she reached the age of 13 years.

A Chronology of the Interaction between the Parents and the County Council
8

The interaction between Mr. and Mrs. O'Donnell and the County Council goes back many years. In 1994 the family were provided with a house in Clondalkin under the County Council scheme of letting priorities. But less than one month later, they voluntarily vacated that house and surrendered the keys. There is a suggestion that there was garda harassment. But the correspondence also strongly suggests that, in fact, Mr. Patrick O'Donnell felt that he was unable to live in permanent settled housing accommodation. That Mr. O'Donnell has apparently long held this view is worthy of recall throughout the narrative of events which follows.

9

Having returned the keys of the house, Mr. and Mrs. O'Donnell moved to St. Maelruan's halting site in Tallaght, which was owned and managed by the County Council. In May, 2001 the Council expended €5,625 resurfacing the caravan bay in order to facilitate Ellen's wheelchair. Following a...

To continue reading

Request your trial
19 cases
  • Simpson v Governor of Mountjoy Prison
    • Ireland
    • High Court
    • 13 September 2017
    ...423 The importance of this principle has been recently restated by the Supreme Court in O'Donnell v. South Dublin County Council. [2015] IESC 28. 424 There were two passages in previous judgments on slopping out that gave the Plaintiff some concern that a finding of inhuman and degrading t......
  • M.C. v The Clinical Director of the Central Mental Hospital
    • Ireland
    • Supreme Court
    • 4 June 2020
    ...did not therefore deal with the claim in damages under the 2003 Act. 147 More recently, in O'Donnell v. South Dublin County Council [2015] IESC 28, on appeal from the decision of Edwards J. in the Court of Appeal, the Supreme Court approached the question of the suitability of the accommod......
  • Ballyboden Tidy Towns Group v an Bord Pleanála and Others
    • Ireland
    • High Court
    • 21 December 2023
    ...for purposes of Appropriate Assessment pursuant to the Habitats Directive. 62 E.g. O'Donnell & Ors v South Dublin County Council & Ors [2015] IESC 28 §71; Davy V Financial Services Ombudsman [2010] IESC 30, [2010] 3 IR 324 §24 citing University of Limerick v Ryan (Unreported, High Court, Ba......
  • Tomás Heneghan v The Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland
    • Ireland
    • Supreme Court
    • 31 March 2023
    ...at para. 12.11), but this same conclusion can also arise from the overall context of the provision ( O'Donnell v. South Dublin Co. Co. [2015] IESC 28 at para. 47). Indeed the law has developed some special rules, so that a power which exists for the benefit of a class of persons subject to ......
  • Request a trial to view additional results
2 firm's commentaries
5 books & journal articles
  • The Focus of Ireland: Homelessness in the Courts - Fagan v Dublin City Council
    • Ireland
    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 January 2020
    ...information at the right times and the council’s decision was based on an incomplete review of the applicant’s actual circumstances. 23 [2015] IESC 28 (‘O’Donnell ’). 24 ibid [68]. 25 Tee v Wicklow County Council [2017] IEHC 623 [79]. 26 ibid. 27 In this regard, the court quoted from Murray......
  • The Case for a Judicially Enforceable Right to Housing
    • Ireland
    • Hibernian Law Journal No. 16-2017, January 2017
    • 1 January 2017
    ...hers may have been an exceptional case. 61 Casey and McCormack-George, supra note 56, p. 147 62 O’Donnell v South Dublin County Council [2015] I.E.S.C. 28 [hereinater O’Donnell 2015] 63 Casey and McCormack-George, supra note 56, p. 134 64 O’Donnell 2015, supra note 62, para. 22 65 ibid, par......
  • Situating Social Rights: Housing and Distributive Justice - Post TD
    • Ireland
    • Irish Judicial Studies Journal No. 3-22, December 2022
    • 1 December 2022
    ...18 The priority in allocation of increasing resources, however, 12 TD (n 1) judgment of Hardiman J, [3]. 13 TD (n 1), per Keane CJ 14 [2015] IESC 28. 15 See Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97 reiterating that under Articles 29.6 and 15.2.1. of the Constitution, UN and Cou......
  • Breaking the cycle of discrimination? Traveller/Roma housing exclusion and the European Convention on Human Rights
    • United Kingdom
    • Sage International Journal of Discrimination and the Law No. 16-1, March 2016
    • 1 March 2016
    ...423, at para. [32].53. Ibid., at para. [33].54. [2007] IEHC 204, at para. [42].55. [2008] IEHC 454.56. [2001] 4 IR 259, at p. 316.57. [2015] IESC 28.58. This reflected a ‘Constitution’ first approach laid down by the Court in JMcD v. PL [2009]IESC 81.59. [2004] 2 A.C. 323.60. Section 4 of I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT