Mulhare (a person of unsound mind not so found on inquiry) v Cork County Council

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 02 July 2018
• Neutral Citation: [2018] IECA 206
• Date: 02 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 206 Record Number: 267/2017

[2018] IECA 206

THE COURT OF APPEAL

Peart J.

Dunne J.

Peart J.

Hogan J.

Neutral Citation Number: [2018] IECA 206

Record Number: 267/2017

BETWEEN:

ELIZABETH MULHARE (A PERSON OF UNSOUND MIND NOT SO FOUND ON INQUIRY), SUING BY HER MOTHER AND NEXT FRIEND BARBARA MULHARE)

AND

BARBARA MULHARE

APPLICANTS/APPELLANTS

- AND -

CORK COUNTY COUNCIL

RESPONDENT

Judicial Review - Order of Certiorari - Order of mandamus - Housing - Tenancy - Disability - Housing (Miscellaneous Provisions) Act 2009

Facts: These proceedings concerned an appeal of the decision of the High Court refusing the appellants an order of certiorari to quash a decision of the respondent dated 17th November 2015 refusing a request to be re-housed in premises adapted to the appellants’ particular needs and situated within five miles of Cork University Hospital and their General Practitioner’s surgery. The first named appellant suffered from cerebal palsy; the second named appellant was her mother and carer. The respondent accepted that the house in which the appellants were living was no longer of a suitable standard for the particular needs of the first named appellant and had offered to carry out works in accordance with the recommendations of an occupational therapist’s report. It was the respondent’s position that they could not comply with the appellant’s request because they had no such housing available to offer. The respondent’s offer was refused by the appellants on the basis that their needs could not be met unless they were re-housed.

The appellants argued that because s. 22 of the Housing (Miscellaneous Provisions) Act 2009 provides that a local authority must adopt a scheme of priorities in order to determine “the order of priority”, and because the first named appellant was within the sixth category of the respondent’s scheme of priorities on the basis of her disability, the respondent was under a statutory duty to comply with the appellants’ request. The respondent argued that the priorities scheme could be disregarded where it considered that there were specified exceptional circumstances.

Held by Peart J. that the appeal would be dismissed. It was for the appellants to establish a firm basis for an order of certiorari by establishing that the respondent’s decision of 17th November 2015 was reached in breach of fair procedures. The respondent had made it clear that the decision was reached on the basis that they did not have a house available within a five mile radius of Cork University Hospital and the appellants’ GP’s surgery that was suitable to meet the needs of the applicants; this had not been challenged by the appellants despite arguing that this was not the true reason for the respondent’s decision. The Court could not interfere in the respondent’s decision-making process unless a clear error was identified.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 2ND DAY OF JULY 2018

1 This is an appeal from the order of the High Court (Baker J.) made on the 23rd May 2017 refusing an order of certiorari to quash a decision of the respondent council contained in its letter dated the 17th November 2015 to the applicants' solicitor, effectively refusing the applicants' request to be re-housed in premises suited to, or adapted to, their particular needs (particularly those of the first named applicant), and situated within five miles of Cork University Hospital and their GP's surgery.

2 The second named appellant (‘Mrs Mulhare’) lives with and cares for her 29 year old daughter, Elizabeth, in a house in Fermoy, Co. Cork, which she occupies under a tenancy from Cork CountyCouncil (previously Fermoy Town Council) since 23rd September 2011. They had previously resided at Ballyvolane, Cork under a tenancy from Cork City Council until September 2011.

3 Elizabeth suffers from cerebral palsy. She has significant needs, and is totally dependent on Mrs Mulhare for her care, support and well-being. In addition, Elizabeth has a severe and persistent respiratory tract infection for which she receives regular treatment both as an out-patient at Cork University Hospital, and from her General Practitioner, Dr O'Regan.

4 Unlike their previous house at Ballyvolane within the functional area of Cork City Council, both the hospital and Dr O'Regan's surgery are some 43 kms from where they now live in Fermoy. When they moved from Ballyvolane to Fermoy in September 2011, Mrs Mulhare accepted the offer of that tenancy by letter dated the 23rd September 2011. In that letter, notwithstanding the distance from the hospital and from Dr O'Regan's surgery, she stated that she was very grateful to the Council for the allocation of the house. After they had moved into the Fermoy premises the Council carried out works to the house with which Mrs Mulhare also expressed her satisfaction at the time.

5 As noted by the trial judge, the house is no longer of a suitable standard for the particular needs of Elizabeth. It lacks level access to a shower and taps, and the bedroom doors are of insufficient width for a wheelchair. In addition there is mould and dampness. Accepting that these problems exist, the Council has indicated its willingness to carry out works that have been recommended in a report by an occupational therapist. But the applicants seek instead a different house altogether, namely one within a five mile radius of the Cork University Hospital and Dr O'Regan's surgery. Apart from the fact that the Council says that it does not have such a house available, it seems to be the case, as noted by the trial judge, that the location in which the applicants wish to be provided with a suitable house, is actually in the functional area of the Cork City Council, and outside that of the respondent Council.

6 It should be said that Dr O'Regan expressed serious concerns about the unsuitability of the Fermoy premises in his medical report dated the 17th July 2014 provided to the applicants' solicitor. In that report he stated, inter alia:

‘A major issue in our discussion today was her present housing situation and total lack of basic facilities.

This house, which appeared to be suitable when it was first issued, has come to our realisation to be totally unsuitable.

As you will know from my previous report to you, that I believe that neither the City nor the County Councils have ever taken this young adult's needs seriously as judged by the fact that if one takes the ideal but basic living conditions required for a severely disabled adult, confined to a wheelchair and dependent on her mother/carer for all of her daily needs, she has never been offered suitable accommodation.

You will know that last winter was a serious one for Elizabeth where she developed respiratory infection after respiratory infection, required hospital admissions and eventually required bowel surgery for total obstruction, due in some part to the poor toilet facilities available to Elizabeth and her mother.

Throughout all of this, Mrs Barbara Mulhare took the best care she could of her daughter.

I would insist that Elizabeth should not spend another winter in these damp conditions and have suggested that Mrs Mulhare should again explore the possibility of private rental with financial support from the relevant bodies until such time as a suitable house, designed and planned by a professional Occupational Therapist can be made available ….’

7 An occupational therapist provided a report in November 2014 which again confirmed that the Fermoy premises were unsuitable and it made recommendations for refurbishment and adaptation to the needs of Elizabeth. This report recommended either that the house be suitably refurbished and adapted or that they be re-housed closer to Cork city so that they can be closer to the hospital and to Dr O'Regan's surgery.

8 As the trial judge noted in her judgment, correspondence between the applicants' solicitor and the Council continued for almost a year after that report was provided. That correspondence included a letter from these solicitors dated the 24th April 2015 in which the Council was called upon ‘to confirm within two weeks of even date that it will take appropriate practical steps, within a reasonable period, to provide our said client and her mother with suitably adapted accommodation closer to the aforesaid hospital’. The letter went on to say that what was requested was a house that was suitably adapted (the specifications of which were to be agreed between the parties' respective experts) to be provided within six months and within a radius of five miles of Cork University Hospital.

9 A letter dated the 19th May 2015 from the council to the applicants' solicitor set out the council's position in response. It stated:

‘Dear Sir,

I refer to my letter of the 24th February 2015 and your response dated 24th April 2015 (received 29th April 2015).

I am instructed that your clients previously resided at 5 Meadow Park Grove, Ballyvolane, Cork, being a property provided and adapted to your clients by Cork City Council.

Your clients subsequently resided at 1 Bridget Terrace, Rathcormac, Co, Cork, and 2 Cluain na Ri, Clondulane, Fermoy, Co. Cork.

Barbara Mulhare applied to Fermoy Town Council for housing accommodation in full knowledge of the distance between Fermoy and Cork University Hospital.

Your clients were notified of the offer of a tenancy in the property on the 22nd of September 2011 and by letter dated the 23rd September 2011. Barbara Mulhare accepted the offer stating:

“I am very grateful & thankful to your dept for all you've done for my daughter Elizabeth and myself. Both my daughter and myself are very thankful and happy to accept this property at No. 4 Lios Oir, Fermoy, Co. Cork on behalf of my daughter as well.”

As previously stated, Cork County Council endeavours to address the needs of all its tenants. It is however constrained by lack of...