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...

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