Feeney v Waterford City and County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Hyland
• Judgment Date: 03 March 2020
• Neutral Citation: [2020] IEHC 116
• Docket Number: [RECORD NO. 2019/258 JR],[2019 No. 258 JR]
• Date: 03 March 2020

BETWEEN

NATANYA FEENEY

AND

KEALAN DUGGAN

APPLICANTS

AND

WATERFORD CITY AND COUNTY COUNCIL

RESPONDENT

[2020] IEHC 116

Hyland J.

[RECORD NO. 2019/258 JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Hyland delivered on the 3 ^rd Day of March, 2020

Introduction

1 This case throws up a net but surprisingly complex issue: in what circumstances can a local authority cease making housing assistance payments (hereafter “HAP”) to a landlord in respect of a specific property due to the condition of that property?

Background to the Proceedings

2 Here, the Applicants, a young couple both on disability benefit with two children age 4 and 5, obtained approval for the HAP scheme in 2014 from the Respondent, Waterford City and County Council (the “Council”). That scheme is governed, inter alia, by Part 4 of the Housing (Miscellaneous Provisions) Act 2014 (the “2014 Act”). In the parlance of the Act, the Applicants were a “qualified household” meaning that they were a household qualified for social housing support in respect of whom housing assistance under Part 4 of the 2014 Act is an appropriate form of social housing support (see s.35 of the 2014 Act).

3 They initially moved into a house that was approved for HAP which they had to vacate due to the landlord's decision to sell the property. They then moved into a second house approved for HAP which they vacated due to the state of the property, including carbon monoxide poisoning. Finally, on 1st June 2017, they moved into the property the subject matter of these proceedings, 5 Fenian Place, Abbeyside, Dungarvan, Co. Waterford.

4 The property had not previously been approved by the Council for HAP. Nonetheless, as envisaged by s.41 of the 2014 Act (discussed further below), the Council signed the HAP agreement with the landlord, Ms. D, with a view to the property being approved by the Council post commencement of HAP. Sometime in early September 2017, the Council came out to inspect the property and subsequently wrote a letter to Ms. D at an address in the USA on 14th September 2017 referring to the inspection and stating they understood she was the agent for the property. It appears in fact from the document exhibited at SIG2 that Ms. D is the owner of the property and not the agent. The letter identified various matters said to be in breach of the Housing (Standards for Rented Houses) Regulations and noted that the Council could take legal action on foot of such breaches under the Housing (Miscellaneous) Provisions Acts. The problems identified were (a) a leak coming from the attic, which was stated to be a matter of urgent attention as the water was coming through the ceiling light; (b) the immersion and temperature gauge; (c) lagging jackets; (d) installation of fire alarms; (e) provision of a mechanical extract vent over the cooker; and (f) repair of window in bathroom. Reference was made to the requirements of the Housing (Standards for Rented Houses) Regulations in respect of certain of those matters. The landlord was given until 12th October 2017 to confirm that the defects had been rectified or were in the process of being rectified failing which the Council indicated they might need to take the matter further.

5 No action was taken by the landlord, and the HAP payment continued to be made to the landlord in the total amount of €575 per month. The Applicants' share of the rent was €60 per week. Section 44 of the 2014 Act provides that requires that HAP tenants shall pay a rent contribution to the housing authority concerned. Similarly, the agreement signed up to by the landlord with the Council (discussed below) provides that the tenant shall pay a weekly rental contribution to the local authority. Despite this, in this case the Applicants appear to have paid the landlord directly. Nothing appears to turn on that fact here save that it appears the Council were not administering the scheme in this case in accordance with the statutory requirements in this respect.

6 Following that inspection, the first named Applicant complained about the condition of the property on a number of occasions, including by email of 28th November 2018. On 29th November 2018, a further inspection of the property took place by the Council.

7 On 3rd December 2018, the Council wrote to Ms. D again outlining that certain matters were noted in breach of the Housing (Standards for Rented Houses) Regulations and warning that the Council “may take legal action on foot of such breaches under the Housing (Miscellaneous Provisions) Acts”. From the list of defects, it appeared the condition of the property had substantially deteriorated in the intervening 15 months since the previous inspection. The work now required to be done included: (a) fitting of wall vent or window trickle vent in five rooms; (b) leak in bathroom ceiling; (c) all doors and windows in need of a service some requiring replacement, window restrictors to be fixed, glass fixed; (d) ventilation required in kitchen; (e) central heating, oil boiler broken, only source of heating is fireplace with back boiler, plumbing issues with taps and radiators leaking; (f) smoke alarm required; (g) gutters and downpipes blocked to be serviced and repaired; and (h) “Gas and electricity systems: General Areas – Supply a current ETCI periodic inspection report by a registered electrical contractor for the electrical installation in the house. Current electrics is in a dangerous condition and all electrics in need of repair/replaced/upgrade”. The Council asked the landlord to confirm in writing before the end of January 2019 that they had rectified the defects.

8 On 10th December 2018 the Council wrote to the Applicants referring to the inspection and advising them they were required to move no later than 31st January 2019 or sooner if they could source an alternative HAP property. A new HAP application form was enclosed and they were asked to submit same when they found alternative accommodation. It is accepted by Ms. Phelan SC for the Council that the Council had no power to require the Applicants to move and that the letter was misconceived in this respect.

9 The Applicants did not move. On 8th February 2019, the Council wrote again to the Applicants referring to “your letter of 10 December 2018” and informing them that their HAP had ceased from 31st January 2019 and that they were responsible to pay the landlord directly for rent from 1st February 2019. There is no letter exhibited of 10th December 2018 from the Applicants so it may be that the Council were referring to the letter that it had sent the Applicants on 10th December 2018. In any case, I am told by Counsel for the Applicants, Mr. Kennedy SC, that the Applicants continued to pay their share of the rent for February and March to the landlord but that they have now ceased paying rent to the landlord and are paying that money into a designated bank account so that it is available if their situation is regularised. Somewhat curiously, no action appears to have been taken by the landlord and therefore at the date of hearing, the Applicants remain in the house and the works identified remain undone.

10 It is agreed by both parties that the property does indeed suffer from the defects identified.

Relevant Statutory Provisions

11 Prior to the introduction of s.18A and B, s.18 of the Housing (Miscellaneous Provisions) Act 1992 as amended (the “1992 Act”) provided for the making of regulations prescribing standards for houses for rent or other valuable consideration and specified that it was the duty of the landlord to ensure that the house complied with the requirements of such regulations. The Minister has prescribed various standards for rental properties over the years. The Applicants identified S.I. No. 17 of 2017 Housing (Standards for Rented Houses) Regulations 2017 as the currently applicable standards and the Council did not demur from that. In fact, it seems that those Regulations have been revoked and replaced by Housing (Standards for Rented Houses) Regulations ( S.I. 137/2019). However, nothing turns on that since the 2019 Regulations still prescribe detailed standards for rented dwellings, albeit somewhat different to those prescribed in 2017.

12 Sections 18A and B were amendments to the 1992 Act, as inserted by the Housing (Miscellaneous) Provisions Act 2009 (the “2009 Act”). Under s.18A, the Minister is entitled to serve an improvement notice on any houses for rent or other valuable consideration requiring improvements. Section 18A sets out in some considerable detail the content of an improvement notice, provisions in respect of objection from the landlord, the response from the landlord where no objection takes place, appeals by the landlord to the District Court, the date of the coming into force of the notice and related matters. It is important in the context of this case to note that s.18A(1) is expressed in discretionary terms as follows:

Where, in the opinion of a housing authority, a landlord is contravening or has contravened a requirement of a regulation made under section 18, the authority may give notice in writing (in this Act referred to as an “improvement notice”) to the landlord of the house concerned.

13 A prohibition notice is provided for by s. 18B and again its use is discretionary. Section 18B(1) provides:

Where a landlord fails to comply with an improvement notice in accordance with section 18A, the housing authority may give notice in writing (in this Act referred to as a “prohibition notice”) to the landlord of the house concerned.

14 Under sub section 2, a prohibition notice shall, inter alia:

(a) State that the housing authority is of the opinion that the landlord has failed to comply with an improvement notice;

(b) Direct that the landlord shall not re-let the house for rent or other valuable consideration unless the landlord has remedied the contravention to which the...