O'Donnell v South Dublin County Council
| Jurisdiction | Ireland |
| Judgment Date | 22 May 2007 |
| Date | 22 May 2007 |
| Court | High Court |
Ireland, High Court
(Laffoy J)
Human rights Inhuman or degrading treatment Right to respect for family and private life European Convention on Human Rights, 1950, Articles 3 and 8 Interpretation and application Whether States have an obligation to intervene actively to protect Article 8 rights Limited nature of positive obligation to intervene Limited nature of State resources Statutory protection of Convention rights No breach of statutory duty Gap in legislative protection Liability of State authorities under Convention where no breach of statutory duty Duty of State authorities to act in manner compatible with Convention
Human rights Protection of rights Right to respect for family and private life European Convention on Human Rights, 1950, Article 8 Duty of State authorities to take account of traditions and sensitivities of nomadic peoples Irish travellers Accommodation Provision of accommodation for Irish travellers by local housing authority Extent of duty to provide caravan accommodation Living conditions and circumstances Plaintiffs with disabilities and special needs living in overcrowded and unsuitable conditions Circumstances posing risk and affecting privacy and personal dignity of plaintiffs Whether failure of housing authority to improve living conditions breaching Article 8 Whether State authorities obligated to provide additional caravan to alleviate plaintiffs' suffering The law of Ireland
Summary:1The facts:The plaintiffs, Mary, Patrick and Bernard O'Donnell, were siblings who all suffered from a condition known as Hurler's
syndrome, which caused them to develop a number of severe abnormalities and suffer a range of disabilities. All three plaintiffs had undergone multiple operations, suffered from mobility and visual impairments and required assistance across the range of personal activities associated with daily livingThe plaintiffs were members of the Irish traveller community who shared, with seven other members of their family, a mobile home on a temporary halting site owned and operated by the defendant. The mobile home, comprising two bedrooms, a living area and one bathroom, was wheelchair-accessible and had originally been provided by the defendant in 2002 in settlement of earlier court proceedings on behalf of Bernard O'Donnell.
The halting site on which the mobile home was situated was in the process of being developed into a permanent facility as part of the defendant's Traveller Accommodation Programme. The O'Donnells' needs had been assessed as part of the Programme and the plaintiffs' mother, Mrs O'Donnell, who undertook the day to day care of the plaintiffs, had expressed a preference for a bay in a residential caravan park as permanent accommodation for her family, rather than accommodation in standard or group housing. An offer of a specially adapted house on the site suggested by an officer of the defendant having regard to the medical condition of the plaintiffs was rejected by Mrs O'Donnell, who wanted her children living in mobile homes in a bay with her. The development work on the site was ongoing but had been subject to delays. An assessment by an occupational therapist declared that there was an urgent need for more appropriate accommodation for the plaintiffs, stating that their current accommodation was grossly overcrowded, potentially unsafe and wholly unsuited to their special needs.
The plaintiffs brought plenary proceedings against the defendant, claiming it had breached its statutory duties and their rights, in particular, under Articles 3 and 8 of the European Convention on Human Rights (the Convention).2 The plaintiffs sought inter alia an order enabling the provision of a second wheelchair-accessible mobile home.
The defendant denied any breach of duty and claimed that appropriate accommodation was due to be provided to the plaintiffs under the Programme upon completion of the site development. The defendant also asserted that the overcrowding was of the O'Donnell family's own making and could be alleviated by the parents purchasing an additional caravan for use by the other members of the O'Donnell family.
Held:Although there had been no statutory breach, the defendant had failed to perform its functions in a manner compatible with the obligations of the State under Article 8 of the Convention.
(1) The case-law clearly showed that in certain circumstances Article 8 of the Convention was capable of imposing a positive obligation on States to provide support to members of the community to ensure respect for their family and
private life. However, in assessing the extent of any positive obligation, a fair balance had to be struck, within the State's margin of appreciation, between the competing interests of the community as a whole and the interests of the individual (pp. 598608)(2) Since the defendant had no statutory obligation to provide a suitable mobile home for use by the first plaintiff and could not be said to have breached any of its positive obligations under domestic law, the lack of statutory protection for the plaintiffs, with the severity of their circumstances and in their current predicament, had to represent a failure of the State to function in a manner compatible with Article 8. However, failure to protect the plaintiffs' rights could not be based solely on a gap in legislative protection; housing authorities were bound under Section 3 of the European Convention on Human Rights Act of 2003 to perform their functions in a manner compatible with the Convention and the defendant had failed in its duty to ensure the plaintiffs' rights were protected (pp. 5908, 60810).
(3) There had been no breach of Article 3 of the Convention. The defendant's treatment of the plaintiffs had not attained the minimum level of severity necessary to constitute inhuman and degrading treatment within the scope of Article 3 of the Convention and had not amounted to a violation of the plaintiffs' rights under that article (pp. 6017).
(4) The level of disability and dependency of the plaintiffs in the instant case combined with the meagre and inadequate assistance proffered by the defendant distinguished it from the DohertyUNK3 case on the facts. The remedies proposed by the defendant were not sufficient to ensure the immediate and effective protection of the plaintiffs' Article 8 rights. The defendant had been aware of the severity of the plaintiffs' circumstances for a number of years yet had failed to implement an adequate solution (pp. 60610).
(5) An award aimed at alleviating the plaintiffs' plight by enabling the provision of a wheelchair-accessible mobile home for the first plaintiff was adjourned for further consideration (p. 613).
The following is the text of the judgment of the Court:
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 18 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 14 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...
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