Moore v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] IEHC 264
• Court: High Court
• Docket Number: 2016 No. 226JR
• Date: 05 May 2017

[2017] IEHC 264

THE HIGH COURT

Barrett J.

2016 No. 226JR

BETWEEN:

NEIL MOORE

APPLICANT

– AND –

DUBLIN CITY COUNCIL

RESPONDENT

Housing – Housing (Miscellaneous Provisions) Act 2009 – Lack of adequate accommodation – Amendment to statement of grounds – Delay – O.84, r. 19 of the Rules of the Superior Courts 1986

Facts: The applicant originally sought an order of certiorari for quashing the decision of the respondent that had entitled the applicant for a one-bedroom accommodation. The applicant claimed that he was a father of two children; however, the respondent noted in its decision that the children were access children, thereby limiting the applicant's entitlement for a one-bedroom unit. The applicant also sought an order of certiorari in relation to the earlier decision of the respondent that had listed him as a single applicant. The issue for determination was whether the Court had jurisdiction under o. 84, r. 19 of the Rules of the Superior Courts 1986 granting an extension of time to the applicant to amend the statement of grounds to include a challenge to the earlier decision of the respondent.

Mr. Justice Max Barrett refused to allow the applicant to amend his statement of grounds for challenging the earlier decision of the respondent. The Court held that it did not have unfettered discretion under o. 84, r. 19 of the Rules of the Superior Courts 1986 to permit the amendment of statement of grounds outside the prescribed time limit. The Court, however, held that the relief asked by the applicant was capable of being granted in the original relief asked for and hence, no prejudice would be caused to the applicant. The Court held that the judicial review application, in relation to the original order of certiorari, would be maintainable.

JUDGMENT of Mr Justice Max Barrett delivered on 5th May, 2017.

I. Introduction

1 Mr Moore is the separated father of two children. Through an unhappy series of life-events he has unfortunately become homeless and, after a period of “sleeping rough” on the capital's streets, has been housed in various emergency shelters for homeless people. Dublin City Council has placed him on a housing list as a single person, notwithstanding, it seems, that Mr Moore could have overnight access to his children if he had suitable accommodation. This state of affairs, Mr Moore insists, breaches his rights, inter alia, under the Constitution and under the equality legislation, as well being ultra vires the Housing Acts.

2 Thus far in the within proceedings, Mr Moore has sought various reliefs, including an order of certiorari in respect of a written decision of the Council of 24th March, 2016, which stated, inter alia, that ‘ The client's children are on his application as access children and therefore he would be considered for one-bedroomed accommodation at present’. (The Council contends that this is not a free-standing decision but merely an affirmation of a decision made in October, 2015; however, that is not a matter which the court has to adjudicate upon at this time). The decision, if such it is, of 24th March, 2016, appears to have been chosen as the appropriate decision in respect of which to seek the afore-stated order as it was the first written decision that set out the reasons why Mr Moore would only be considered for a one-bedroom unit.

3 Mr Moore now wishes to seek the further relief of an order of certiorari in respect of a decision of the Council 23rd February, 2016. This earlier decision involves a refusal by the Council of an application made by Mr Moore for a particular unit under a scheme known as the “Choice-Based Letting Scheme” under which the person first-listed is the person first-accommodated. This decision states that Mr Moore is listed as a single applicant and therefore is ‘ not eligible to be considered for a two-bedroom vacancy’. The objection taken to this decision, it seems, is that it did not set out the reasons why Mr Moore would not be eligible for a two-bedroom vacancy.

4 Counsel for Mr Moore maintains that there is no prejudice to the Council in seeking the amendment to the reliefs sought as the statement of grounds in its current form already references the decision of 23rd February, 2016. Counsel for Mr Moore also refers in this regard to the provision made in O. 84, r.19 of the Rules of the Superior Courts 1986, as amended, which provides that ‘ On an application for judicial review any relief mentioned in rule 18( 1) or (2) [being an order of certiorari, mandamus, prohibition or quo warranto, a declaration or an injunction] may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter and in any event the Court may grant any relief mentioned in rules 18( 1) or (2) which it considers appropriate notwithstanding that it has not been specifically claimed’; counsel for Mr Moore further suggests that there is nothing that the court will be empowered to do by virtue of the amendment now sought which it could not in any event achieve at the end of the day, by reference to O. 84, r.19, even on the application as now structured.

5 The Council intends to resist the within proceedings because it considers that its differentiation between homeless persons whose children do have accommodation and those who do not is legally defensible. The Council also objects to the within application for a number of reasons, these being in summary: (1) because of what it maintains is a historical and continuing reluctance on the part of the courts to allow any amendments to statements of grounds; (2) because the reluctance aforesaid applies a fortiori where the amendment sought will seek relief in respect of a decision (the decision of 23rd February, 2016) in respect of which no relief was originally sought; (3) that the existence of the decision of 23rd February, 2016, was known and considered at the time that leave to seek judicial review was sought and a decision was made not to seek relief in respect of same; (4) that application for relief in respect of the decision of 23rd February, 2016, falls well outside the applicable timeframe and hits the further difficulty, in the context of the within application, that the need for any extension of time has been expressly disavowed by counsel for Mr Moore; (5) within the overall period of delay referred to at (4) there is a separate period of delay in that Mr Moore's solicitors wrote to the Council in July, 2016 concerning the amendment now sought and the Council indicated by reply that it would not consent to such an amendment, yet the notice of motion grounding the within application did not issue until 17th October, 2016; (6) that the reliance that it is sought to place on O. 84, r.19 would, to borrow a phrase, “ride a coach and horses” through the tightly time-constrained process of judicial review; (7) because the decision, if such it is, of 24th March, 2016, is concerned with a radically different matter from that of 23rd February, 2016, because the earlier decision involves a refusal of an application made by Mr Moore for a particular unit under the Choice-Based Letting Scheme whereas the decision, if such it is, of 23rd March, 2016, concerns Mr Moore's being placed on the one-bedroom list; (8) that the challenge to the decision of February, 2016 is in any event futile for two reasons, viz. (i) someone else has been accommodated in the choice-based accommodation and there is no suggestion by anyone that that person should now be evicted and Mr Moore accommodated in her or his stead; and (ii) as Mr Moore was not the longest-listed person on the choice-based accommodation list, he would never have been granted the choice-based accommodation even if the decision, if such it is, of 23rd February, 2016, is tainted by error.

II. The Order for Leave

6 Before proceeding to consider some applicable case-law, it is informative to consider the precise terms of the leave granted. Application for leave to seek judicial review was made on 11th April, 2016. If one looks to the order granting the requisite relief, it states that the reliefs sought were (i) those identified in para. (d) of the statement of grounds, which reliefs (ii) were to be sought on the grounds identified in para. (E) of the statement of grounds. The said para. (d) refers to the reliefs being sought as:

‘1. An order of certiorari quashing the decision of the 24 March 2016 of the Respondent to place the applicant on the Housing List for accommodation of 1 bedroom only.

2. A declaration by way of judicial review that the Housing Allocation Scheme is ultra vires the Housing (Miscellaneous Provisions) Act 2009 and the Regulations made thereunder.

3. A declaration by way of judicial review that the Housing Allocation Scheme is inconsistent with the Respondent's obligations under the Constitution and/or the European Convention of Human Rights’,

and certain ancillary reliefs.

7 Paragraph (E) of the statement of grounds, entitled ‘Grounds upon which relief is sought’ refers, in the course of giving the historical background to the judicial review application presenting, to the decision of 23rd February, 2016, stating as follows, at sub-paragraph 8:

‘On the 23 February 2016 the Respondent emailed the applicant and stated, inter alia:

“I refer to your application under the Choice Based Letting Scheme for two bedroom accommodation in [-]…. Unfortunately as you are listed as a single applicant you are not eligible to be considered for a two bedroom vacancy’.

8 One point that might usefully be made at this juncture, having regard to the above-quoted segments from the statement of grounds, is that the court does not accept that where a decision is referenced in the statement of grounds furnished as part of a leave application but no leave to review same is...