Mulhare v Cork County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] IEHC 288
• Court: High Court
• Docket Number: [2016 No. 49 JR]
• Date: 05 May 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

AND

CORK COUNTY COUNCIL

RESPONDENT

[2017] IEHC 288

Baker J.

[2016 No. 49 JR]

THE HIGH COURT

JUDICIAL REVIEW

Housing – Human Rights – Art. 8 of the European Convention on Human Rights ('ECHR') – Part 2 of the Housing (Miscellaneous Provisions) Act 2009 – Social Housing Assessment Regulations 2000

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent for refusing to provide a suitable accommodation to the applicants. The first applicant, who was a person of unsound mind through her mother being the second applicant, contended that the respondent infringed art. 8 of the European Convention on Human Rights by refusing to provide a suitable home. The second applicant thus, sought an order of mandamus for directing the respondent to provide a house that was in proximity to medical advisors and within a radius of five miles of the named hospital. The respondent contended that it was ready to make repairs and modifications in the existing home to adjust to the needs of the first applicant; however, it was not bound to provide a suitable accommodation.

Ms. Justice Baker refused to grant the desired relief to the applicants. The Court held that art. 8 of the ECHR did not contain a positive obligation on the respondent to provide the desired home to the applicants. The Court held that it was the statutory function of the respondent to provide housing facilities to the physically disabled persons and as long as the respondent was fulfilling its duty under the Act, the Court need not interfere. The Court held that the respondent, despite knowing that the applicants were in arrears of their rent, made provisions for their housing, which could not be extended to provide a home that would specifically cater to their needs.

JUDGMENT of Ms. Justice Baker delivered on the 5th day of May, 2017.

1 The second applicant is the mother and carer of the first applicant who suffers from profound physical and mental disabilities. This application for judicial review concerns their application to Cork County Council, a housing authority, that they be rehoused in accommodation appropriate to the physical needs of the first applicant, and sufficiently proximate to the medical practitioners and hospital where she attends from time to time.

2 The application is framed as an application for judicial review by way of certiorari to quash a decision made on 17th November, 2015, by which Cork County Council refused to rehouse the applicants in accommodation suited structurally or geographically to the needs of the first applicant. In the alternative, the applicants seek an order of mandamus that the respondent provide appropriate housing for them. The applicants also seek declaratory relief that they be entitled to priority in the allocation and provision of housing within the functional area of the respondent.

3 The respondent denies that the claim is properly a matter for judicial review, as the application seeks to undermine the statutory function of the Council as a housing authority and interfere with the scheme of priorities established by it in the performance of its statutory functions. It is asserted that the respondent has properly considered the housing needs of the applicants, and the factual basis of this plea and the interplay between the role the respondent and Cork City Council, a distinct housing authority in County Cork, will appear in the course of this judgment.

4 The respondent asserts that it has offered to carry out works of repair and alteration to the premises currently occupied by the applicants at No. 4 Lois Oir, Pyke Road, Fermoy, Co. Cork in accordance with the recommendations made in a report by an occupational therapist.

Relevant facts

5 Elizabeth Mulhare, the first applicant, is 28 years old, suffers with cerebral palsy, and is fully dependent on her mother for all aspects of her care. She suffers from severe and persistent respiratory infection and for which she is treated at a hospital outpatient clinic and general practitioner in Cork City, some 43km from her home.

6 The applicants have, since 23rd September, 2011, resided in premises in Fermoy, County Cork of which the second applicant is tenant, initially to Fermoy Town Council, and currently to Cork County Council as successor in title of the original lessor. They had previously resided within the Cork City Council boundary in Ballyvolane, Cork, as tenants to the City Council and subsequently in premises in Rathcormac, Co. Cork, close to Fermoy, and later in Fermoy Town itself. Mrs. Mulhare accepted the offer of the tenancy in the premises at Lios Oir, Fermoy and in her letter of 23rd September, 2011 expressed herself to be 'very grateful and thankful' and 'very happy and thankful' to accept the tenancy of that premises. Works were carried out to the premises in 2012 with which she also expressed satisfaction.

7 The difficulties which the applicants say have come to light since that time, and their dissatisfaction with the current state of the premises will be dealt with in the course of this judgment.

8 The premises in which the applicants live is accepted as not being of a standard suitable for the needs of the first applicant. There is, for example, no level access to a shower room, to taps, and no bedroom with a sufficient door opening to enable access by a wheelchair. The house is affected by mould and dampness.

9 A report prepared by an occupational therapist has identified the unsuitability of the premises and what needs to be done. The County Council has agreed to carry out the works identified by the occupational therapist, but the applicants claim that more suitable premises must be found which enables ready and relatively cheap access to the doctor and clinic. In effect, the applicants claim that they should be allocated a house within a five-mile radius of the hospital and GP practice, and that such premises is to be found within the functional area of Cork County Council.

10 Correspondence has been engaged between the solicitors for the applicants and Cork County Council. The first letter of 23rd July, 2014 sets out a general request that Mrs. Mulhare and her daughter be rehoused in accordance with the recommendation of Dr. Noel O'Regan contained in his report of 17th July, 2014, in which he states that the current accommodation is not suitable for the medical and physical needs of Elizabeth. That letter did not expressly recommend a move to a different geographical location and its focus was the unsuitability of the current accommodation.

11 Correspondence continued for almost a year, during which a lengthy and detailed report dated 6th November, 2014, was prepared by an occupational therapist and in which detailed recommendations were made for refurbishments and adaptations. That report summarised the position that her current home was 'no longer suitable for Elizabeth' and recommended that Cork County Council would consider two options, either the carrying out of the refurbishment and adaptations, or the rehousing of Elizabeth and her mother to a suitable property closer to Cork City in the light of a recommendation of Dr. O'Regan that it would be beneficial for Elizabeth and her mother to live near his surgery and to Cork University Hospital where Elizabeth frequently attended for day admissions or longer.

12 Correspondence culminated in a letter of 24th April, 2015, from the solicitors for the applicants the purpose of which was:

'...to call on the Council 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. In that regard, what we request is suitably adapted accommodation (the specifications whereof 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 (For the avoidance of doubt, our Client remains open to discussion on the details of any such accommodation).'

13 Correspondence continued over the following months leading to a short letter from the County Solicitor of 17th November, 2015, referring to the intervening correspondence and which set out the following:

'I would reiterate that at all times my Client has been ready, willing and able to immediately carry out the works suggested by the occupational therapist and to address any work necessary to redress damages in the property.

Unfortunately, the Council does not have any suitable alternative accommodation available for your client in the city hinterland or elsewhere.'

14 The application for judicial review is focused on this letter of 17th November, 2015.

Relief sought

15 The applicants seek an order of certiorari quashing the decision articulated in the letter of 17th November, 2015. The statement of grounds was amended pursuant to an order of Noonan J. made on 3rd October, 2016, by which there was added a prayer for relief on the grounds that the County Council had failed to take account of, or give sufficient weight to, the physical condition of the first applicant, that irrelevant considerations were engaged, or that the determination was not reached in accordance with the requirements of natural and constitutional justice. Finally, the applicants seek damages or compensation for breach of statutory duty and negligence pursuant to s. 8 of the European Convention on Human Rights Act 2003.

16 The primary relief sought, however, is mandamus and in that regard the relief sought is specific and narrow: an order by way of mandamus directed to Cork County Council that it would provide housing to...