H. v South Dublin County Council
|Mr. Justice Michael MacGrath
|12 March 2020
| IEHC 250
|[2019 No. 426 JR]
|12 March 2020
 IEHC 250
Michael MacGrath J.
[2019 No. 426 JR]
THE HIGH COURT
Statutory obligations – Social Housing Assessment Regulations 2011 – Social housing support – Applicants seeking an order of mandamus compelling the respondent to comply with its statutory obligations – Whether the applicants had established that the respondent had been in breach of its obligations
Facts: The applicants, on 1st July, 2019, were granted leave to seek an order of mandamus compelling the respondent, South Dublin County Council, a statutory housing authority within the meaning of the Housing Acts 1966-2014, to comply with its statutory obligations under s. 20(2) of the Housing (Miscellaneous Provisions) Act 2009 and/or Regulation 12(1) of the Social Housing Assessment Regulations 2011 (S.I. 84/2011) and in particular to carry out an assessment and/or deal with and/or issue a decision in respect of the applicants’ application for social housing support submitted to the respondent on the 14th January, 2019. The applicants also sought damages. The applicants claimed that the respondent was in breach of its obligations under Regulation 12(1) of the Regulations.
Held by the High Court (MacGrath J) that the applicants had established that the respondent had been in breach of its obligations under the Regulations, particularly Regulation 12, to deal with their application of the 14th January, 2019, within the requisite time period.
MacGrath J held that he would discuss with counsel the appropriate form of relief which should be afforded to the applicants.
Form of relief discussed.
On 1st July, 2019, the applicants were granted leave to seek an order of mandamus compelling the respondent, a statutory housing authority within the meaning of the Housing Acts 1966-2014, to comply with its statutory obligations under s. 20(2) of the Housing (Miscellaneous Provisions) Act 2009 (“ the Act of 2009”) and/or Regulation 12(1) of the Social Housing Assessment Regulations 2011 (S.I. 84/2011) (“ the Regulations”) and in particular to carry out an assessment and/or deal with and/or issue a decision in respect of the applicants’ application for social housing support submitted to the respondent on the 14th January, 2019. The applicants also seek damages.
At the commencement of the hearing the court made an order pursuant to s. 45 of the Courts (Supplemental Provisions) Act 1961 and s. 21 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication, or broadcasting, of any matter, which would or could identify the applicants.
Before considering the facts and basis of the challenge, it is relevant to an understanding of the issue to outline at this stage the relevant statutory provisions which are central to the issues in this case.
Section 19(1) of the Act of 2009 provides:-
“A housing authority may, in accordance with the Housing Acts 1966 to 2009 and regulations made thereunder, provide, facilitate or manage the provision of social housing support.”
Section 20(2) of the Act of 2009 provides:-
“(2) Where a household applies for social housing support, the housing authority concerned shall, subject to and in accordance with regulations may for the purpose of this section carry out an assessment (in this Act referred to as a “Social Housing Assessment” of the household's eligibility, and need for social housing for the purpose of determining-
(a) whether the household is qualified for such support and
(b) the most appropriate form of any such support.
(4) The Minister may make regulations providing for the means by which the eligibility of households for the social housing support shall be determined including, but not necessarily limited to the following …
(a) the form and manner in which a social housing assessment shall be carried out and
‘(b) the period within which an application for social housing support shall be dealt with by a housing authority and
(c) notification by the housing authority of the making of a decision in respect of an application for social housing support.
Regulation 12 provides:-
“12.(1) Subject to proper completion of the application form by the household and to paragraph (2), the housing authority of application shall deal with the application within a period of 12 weeks of receipt or, where the authority has requested additional information for the purpose of verifying information relating to the application, within 6 weeks of the receipt of such additional information.
(2) Subject to paragraph (4), where the housing authority of application is unable to deal with an application within the relevant period specified in paragraph (1), the authority shall, before the expiration of the period concerned, notify the household accordingly, specifying the reason therefor and the further period within which the authority expects to deal with the application.
(3) Subject to paragraph (4), a housing authority of application may, where necessary and for stated reasons, extend the further period referred to in paragraph (2) and shall notify the household accordingly.
(4) Any extension to a period granted by a housing authority under paragraph ( 2) or (3) shall expire on or before the effluxion of 14 weeks following the expiry of the relevant period referred to in paragraph (1).”
The applicants are a married couple, born outside the jurisdiction and have resided in Ireland since 2006. They are not in employment. They rented a property in Tallaght, County Dublin from 1st January, 2011 to March, 2018. Their tenancy was terminated by the landlord. They maintain that in consequence they were rendered homeless. Between April and May, 2018, they availed of night to night emergency accommodation provided by the respondent. It is contended that they were unable to cook for themselves or to maintain proper hygiene in the hostel facilities provided and that they were required to vacate the accommodation each morning and return each evening.
Both applicants have medical conditions. The first applicant suffers from epilepsy and has undergone treatment for throat cancer. The second applicant underwent a lobectomy of her right lung in 2014 with the result that she has a compromised respiratory system. Both also have experienced spinal injuries. They maintain that since June, 2018, they have been accommodated by relatives on an ad hoc basis.
On the 12th December, 2018, the applicants completed an application form seeking assessment for housing support under the Act of 2009 and the Regulations. They retained the services of a free legal advice centre (“ FLAC”) who made the application on their behalf under cover of letter dated 14th January, 2019. No formal acknowledgment was received by them to this application.
On the 5th April, 2019, a staff member in the office of the solicitor's representing the applicants, Mr. Bowes, made telephone contact with the respondent and was advised that the application was under review. It is contended that he was notified that a decision would be issued in April 2019, but none issued. On the 17th April, 2019, FLAC sent a further letter stating that as no additional information had been sought, the respondent ought to make an immediate decision on the application. It was also alleged that the respondent had not complied with the statutory time period within which to make such assessment. By letter dated 10th May, 2019, the respondent was notified that, absent a decision, proceedings would be instituted.
The applicants plead that the respondent is statutorily charged with the provision of housing assistance under the Housing Acts and is empowered to provide social housing assistance including financial assistance and support to persons who are assessed as eligible to receive same. They contend that this is not only a statutory right but also a Constitutional right and that as the respondent is an organ of State within the meaning of s. 3 of the European Convention on Human Rights Act 2003, it is obliged to exercise its powers and discharge its functions in accordance with the Convention rights of the applicants, particularly those protected by Articles 3, 8 and 14.
The applicants also contend that the respondent's failure and/or refusal to assess the application amounts to a breach of statutory duty, is irrational and/or unreasonable. It is alleged that the respondent has failed to comply with its mandatory statutory obligations by not dealing with the applicants within the prescribed 12 week statutory period. It is also contended that in the exercise of its statutory obligations, the respondent failed to have regard to relevant factors, including the applicants’ ill – health, their ages and vulnerabilities, and lack of accommodation.
The application is grounded on the affidavit of the first applicant. The statement of grounds is verified and supported in the affidavit sworn by him on the 28th June, 2019. Medical certificates have been exhibited. Neither of the applicants speak English.
The first applicant deposes that he previously made an application for social housing support in March, 2017 to which a reply, being a refusal, was received from the respondent on the 8th January, 2018. He maintains that the respondent's reason for its decision was that neither of the applicants had a record of 52 weeks’ employment in the State. As will be seen, this is most contentious because the respondent maintains that it has not made a decision on that application and that it is not permissible for the applicants to make a second application while the first is extant.
An affidavit has also been...
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